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Spousal Maintenance in Family Law

Mar 11, 2019 5:02:09 PM

Spousal maintenance is ongoing financial support paid by a party of a marriage to their former partner in circumstances where the former partner is unable to support themselves. In de facto relationships, this is called de facto partner maintenance. For the purposes of this article, both types of maintenance will be referred to as ‘spousal maintenance’.

Principles of Spousal Maintenance in Australia

Under Section 72 of the Family Law Act 1975 (Cth) (“the Act”), a party may be eligible for spousal maintenance if:

  1. They are unable to adequately support themselves in a reasonable manner, and
  2. The other party to the marriage is reasonably able to maintain them.

Overarching this is the Court’s commitment to the principle of a ‘clean break’, which is entrenched in Section 81 of the Act as follows:

“the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to a marriage and avoid further proceedings between them”.

Section 90ST of the Act applies the same principle to de facto couples. Notwithstanding this, the Court is empowered through Section 74 of the Act to make “such order as it considers proper for the provision of maintenance”.

When assessing whether a party has a right to claim spousal maintenance, the Court looks at a number of factors relating to both parties (Sections 75 and 90SF of the Act), including but not limited to:

  • The party’s age and health;
  • The party’s income, property, debts and financial resources;
  • The party’s ability to work;
  • Whether the marriage or relationship has affected a party’s ability to earn an income;
  • What is considered to be a suitable standard of living for the party; and
  • Whether the children live with the party.

Ultimately, the Court considers what is the financial need of the claiming party and what is the financial capacity of the potential paying party, and then exercises its discretion as to what payment it thinks is reasonable.

Spousal Maintenance in Practice

When applying the principles of spousal maintenance in practice, the Court considers what is “reasonable” in terms of the parties’ standard of living. The Court exercises its discretion within the following parameters:

  1. Where possible, after separation both spouses should be able to continue to live at the level which they had previously enjoyed during their relationship if this is reasonable. However, this is not always possible due to the insufficient parties’ financial resources, and it may be the case that it is more appropriate for a lower standard of living to be maintained: Patterson & Patterson (1979) FLC 90-705, Brown & Brown (2007) FLC 93-316.
  2. A party applying for spousal maintenance is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy: Brady & Brady (1978) FLC 90-513.

A party does not have to first deplete their available funds or their assets from the matrimonial pool prior to making a claim for spousal maintenance.

The purpose of spousal maintenance is to assist the party receiving maintenance through a temporary period of their life. In accordance with the ‘clean break’ principle, spousal maintenance is not intended to be payable for life. Rather, it is designed to be a temporary order while the recipient retrains and becomes self-supporting.

Applications for spousal maintenance must be made within 12 months of a divorce being final, or within 2 years of the breakdown of a de facto relationship.

Spousal maintenance can be either paid as a lump sum payment or on a periodic basis based upon each party’s circumstances.

Conclusion

In family law, spousal maintenance is often considered as part of an overall settlement of financial matters. Spousal maintenance orders are fairly uncommon in family law proceedings, due predominantly to the Court’s resolve to ensure parties have a ‘clean break’ after separation or divorce. However, it is possible that spousal maintenance ought to have a larger part to play in property matters than has been the case to date.

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Topics: Family Law

Karla Elias

Written by Karla Elias