Spousal maintenance is the financial support of one spouse by the other spouse following the breakdown of a marriage. Parties to a marriage have a right to make an application for spousal maintenance under by section 72 of the Family Law Act 1975. Spousal maintenance can also be paid between parties to a de facto relationship and this is covered under section 90SE of the Act.
The test is set out under section 72. The test considers the applicant party’s income and expenses, capacity to earn income and financial resources, and then the capacity of the other party to pay the maintenance sought.
There are different types of spousal maintenance:
- urgent (section 77);
- interim; or
Spousal maintenance can be paid in a lump sum, or in periodic amounts, until a further order of the court, or for 3 years until a party completes a period of further training.
To make a spousal maintenance application a party needs to file an Initiating Application (or Application in a Case if the case is ongoing), an Affidavit in Support and Financial Statement as to their current financial circumstances. The statement includes weekly expenses such as groceries, electricity and home maintenance.
Types of spousal maintenance
In the case of de facto relationships, prior to 1 March 2009, there was no right to maintenance. Now all spousal maintenance matters, whether arising out of the breakdown of a marriage or de facto relationship, in all Australian states and territories except for Western Australia are dealt with under the Act.
The test as to whether spousal maintenance is payable asks:
- Is the person applying for the maintenance exercising, to a reasonable extent, their ability to support themselves;
- Does the person applying for maintenance, after exercising their ability to support themselves (as required in Step 1) still have a financial need; and
- Does the person that is being asked to provide the maintenance have a financial capacity to do so, having a regard to their own commitments and standard of living which is reasonable in all of the circumstances.
If this test is met, spousal maintenance can be paid as either a lump sum, on an interim basis, or on an urgent basis.
A lump sum payment can be ordered pursuant to section 77(A) (for parties to a marriage) and section 90SH (for parties to a de facto relationship) of the Act. A lump sum payment may be ordered in circumstances where the party who is to provide the maintenance does not have the income to make payments to the other party periodically and on an ongoing basis. The court could determine that the “paying party” has deliberately put themselves in such a situation in a bid to avoid spousal maintenance. In such circumstances, the court will look to the nature and value of the assets the paying party has available to them to determine the availability of funds to provide a lump sum payment.
The party in receipt of the lump sum spousal maintenance has a responsibility to ensure the money is applied to their reasonable living expenses which they have demonstrated to the court they cannot pay themselves.
An order for interim spousal maintenance is made pursuant to section 74 (for parties to a marriage) and section 90SE (for parties to a de facto relationship) of the Act.
Interim spousal maintenance may be ordered in circumstances where a party requires maintenance immediately after the breakdown of the relationship or marriage. However, an order for interim spousal maintenance cannot be made until both parties have filed affidavit evidence and a financial statement so the court.
The interim Order is a temporary order that will be in place until the matter is heard or resolved by consent, on a final basis, along with all other issues in the property settlement matter. Each party can bring an application in a case pending the final resolution of the matter if new issues arise.
An order for urgent spousal maintenance can be made pursuant to 77 (for parties to a marriage) and 90SG (for parties to a de facto relationship) of the Act. Urgent spousal maintenance can be by way of a lump sum payment (as described above) or periodic payments.
Unlike an order for in interim spousal maintenance, urgent spousal maintenance applications are dealt with in a summary way, meaning the parties do not necessarily have to provide to the court with evidence of their financial circumstances.
In other words, an order for urgent spousal maintenance is usually made in circumstances that could be considered an emergency and when there is a clear need but no time for parties to provide evidence.
For advice or representation in any legal matter, please contact Armstrong Legal.