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 is reasonably able to support them, such that they have the “capacity” to provide the required financial support. Factors that are taken into consideration 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 years old, their inability to participate in gainful employment due to age, or incapacity, or any other relevant reason.

The Family Law Act 1975 (‘the Act’), provides both the Family Court of Australia and the Federal Circuit Court of Australia with the power to make Orders in respect to Spousal Maintenance.

There are three types of Spousal Maintenance Orders available under the Act, including Orders for: –

  • 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 assist 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.

Orders made on an interim basis differ from Urgent Maintenance Orders. Unlike Urgent Maintenance Orders, both parties to an Application for Interim Maintenance have a greater opportunity to adduce relevant evidence to demonstrate their financial circumstances, to assist the Court in determining whether or not a party has a financial need, and the other has the capacity to support that party.

Spouse 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 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 Spouse maintenance may be enforceable until the party receiving the maintenance payments obtains employment, or the children to the relationship reach the age of 18 years old.

It is important to remember that if you re-marry, you are no longer entitled to receive spousal maintenance payments. Similarly, if you commence 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, make an appointment with the experienced team at Armstrong Legal.

 

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