Family law and spousal maintenance

Date: Nov 02, 2011
Document Type: Newsletter

Relationships that have come to an end, whether the parties were part of a marriage or a de facto coupling, are always difficult. Additionally if there are further issues relating to finance, the situation can be even more fraught – especially if one of the parties is in a weaker economic position. The Family Law Act (the Act) allows a party to a marriage or de facto relationship, to financially maintain the other party to the extent that they are reasonably able to do so, if one of the parties cannot support him or herself adequately. The courts then can decide to issue a maintenance order however, the Act mandates that certain requirements must be met before an order can be issued.

Spousal maintenance under the Act

In ss 72 and 75(2), relating to married couples, and ss 90SE and 90SF for parties who were involved in a de facto relationship, outlines the requirements under the Act in which the the Court may issue a maintenance order.

Looking towards s 72 of the Act as an example, the following considerations will be made by the Court when assessing the viability of issuing a maintenance order:

“A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only, if that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage or de facto relationship under 18 years;

(b) by reasons of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).”

With the introduction of the 2008 amendments, de facto couples share the same substantial maintenance rights under ss 90SE and 90SF, and the Court will take into consideration the propriety of issuing a maintenance order in favour of one of the parties.

However, in order for a party to be considered for maintenance as a de facto, a person must meet the formal requirements under the Act before they are deemed to be eligible. To satisfy the Court that a person was part of a de facto relationship, the following considerations must be met in order for the relationship to gain recognition:

• the parties were not married to one another
• the nature and the extent that the parties lived with one another
• the parties did not share any family ties, common ancestry, or have a child with one another
• the parties had lived together on a genuine domestic basis.

What considerations will the Court make if a de facto is seeking an order or declaration?

Conversely, if a party to the de facto relationship is seeking an order or declaration, then the Court will only do so under the following conditions:

• the period of the de facto relationship was at least two years
• there is a child involved in the relationship
• there had been a substantial contribution by one party to the other, and it would be seen as a serious injustice if an order or declaration was not made.

If the parties to a de facto relationship meet the conditions as outlined under the Act, the Court will not consider whether the de facto relationship was a heterosexual, or same-sex coupling.

The party must have the ability to pay for maintenance

In determining whether a maintenance order should be issued, it must be demonstrated to the Court that the paying party is able to afford the costs associated with the issuing of the order. When making a decision, the Court will examine the living standards between the parties, and make an assessment on the paying party’s ability to financially support the other person.

The overarching aspect when making an assessment, is one in which the comparative living standards between the parties is to be considered, which involves looking into the surrounding situation in relation to the parties, pre, and post-separation.

Making a maintenance application

When applying for maintenance, a party who is seeking the order must do so within 12 months after the finalisation of the divorce for a married couple, or within two years of the ending of a de facto relationship.

Seeking a maintenance order is a complicated process, and it is always advisable that you seek help from a lawyer to ensure that you meet all the procedural requirements. An experienced lawyer can help you file an application, and assist you with any court appearances that may occur.

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