Types of Spousal Maintenance


Spousal maintenance is a payment one party provides to the other after their relationship has broken down. It is available for parties after the breakdown of their marriage or de facto relationship. In the case of de facto relationships, prior to 1 March 2009, there was no right to maintenance in Queensland. 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 Family Law Act 1975 (Cth).

The test as to whether spousal maintenance is payable from one party to the other, is as follows:

  • 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 has 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.

Lump Sum Spousal Maintenance

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 Family Law Act 1975 (Cth). 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. Indeed, the Court could determine that the “paying party” has deliberately put themselves in such a situation in a hope of avoiding spousal maintenance. In such circumstances, the Court will look to the nature and value of the assets the payer party has available to him plus her to determine the availability of funds to provide a lump sum payment.

The party who is in receipt of the lump sum spousal maintenance has a responsibility of ensuring that the money is applied to their reasonable living expenses which they have demonstrated to the Court they cannot pay themselves.

Interim Spousal Maintenance

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 Family Law Act 1975 (Cth).

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, being the party wanting to receive the maintenance and the party who is proposed to pay the maintenance, has filed Affidavit evidence and a financial statement so the Court is aware of each party’s financial position and relevant information relating to the proposed payer’s capacity to pay spousal maintenance.

After reviewing the evidence and determining that one party has a need and the party has a capacity to pay to meet that party’s need, the Order for interim spousal maintenance can be made by 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 does however has the option of bringing an application in a case pending the final resolution of the matter if new issues arrive in relation to interim spousal maintenance payment, pending the final resolution of the matter.

Urgent Spousal Maintenance

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 Family Law Act 1975 (Cth). Urgent spousal maintenance can be by way of a lump sum payment (as described above) or by way of payments made periodically over time.

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 for the Court’s review evidence of their financial circumstances in support of their claim for spousal maintenance.

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. The case of Williamson & Williamson (1978) FLC 90-505 stated that the purpose of Section 77 (and similarly, Section 90SG) is to provide a party Orders to relieve their pressing, present need and the court shall determine whether to make an Order for urgent spousal maintenance on a pragmatic basis, rather than taking their time to hear the application upon merit.

 

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