Effect of a Spousal Maintenance Order

Spousal maintenance is the term used when a person is responsible to provide financial support to their spouse or former de-facto partner following the breakdown of a relationship.

A person may be liable to pay spouse maintenance (or de-facto partner maintenance) if the other party to the relationship cannot adequately support themselves on their own income. The party seeking an order for maintenance must demonstrate that they have a need for the financial support, and that the other party has the “capacity” to provide it. Factors considered when determining whether or not a party has a “need” for financial support include having primary care of a child of the relationship, who is under the age of 18, and an inability to participate in gainful employment due to age, or incapacity.

The Family Law Act 1975 provides both the Federal Circuit and Family Court (FCFCA) of Australia with the power to make orders about Spousal Maintenance.

There are three types of spousal maintenance orders available under the Act:

• urgent maintenance;
• interim maintenance; and
• final maintenance.

The courts can make Orders for maintenance to be paid in a lump sum payment, or on a periodic basis.

Urgent Maintenance

Orders for urgent maintenance are made under section 77 of the Act for parties to a marriage, and under section 90SG of the Act for parties to a de-facto relationship. Urgent maintenance orders are made to help a party with an immediate need for financial support. Urgent maintenance orders are often made on a pragmatic basis, until the matter can be determined at an interim or final hearing.

Interim Maintenance

Orders for interim maintenance are made under sections 72, 74, 75(2), and 80(1)(h) of the Act.

Unlike urgent maintenance orders, both parties to an application for interim maintenance have a greater opportunity to provide evidence to demonstrate their financial circumstances, to help the court determine whether or not a party has a financial need, and the other has the capacity to pay.

Spousal maintenance orders made on an interim basis are intended to be in effect until the court makes a final order for maintenance, or the application is dismissed.

Final Maintenance

Like interim maintenance orders, final maintenance orders are made under sections 72, 74, 75(2), and 80(1)(h) of the Act.

Orders for spousal maintenance made on a final basis are intended to be permanent. However, it is common for final spouse maintenance orders to specify a time limit, or event, when they will cease to have effect. For example, an order for spousal maintenance may be enforceable until the party receiving the maintenance payments obtains employment, or the children to the relationship reach the age of 18.

It is important to remember that if you re-marry, you are no longer entitled to receive spousal maintenance payments. Similarly, if you start a new de facto relationship, you may not be eligible to receive spousal maintenance from your former partner, as the court will take into account the income of your new partner, when determining your financial circumstances.

If you require advice about making an application for spousal maintenance, or any legal matter, please contact Armstrong Legal.