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MAINTENANCE FOR SEPARATED SPOUSES AND FORMER DE FACTO PARTNERS

MAINTENANCE FOR SEPARATED SPOUSES AND FORMER DE FACTO PARTNERS

Maintenance is the payment of funds from one party to the other in circumstances where the applicant party is unable to adequately support themselves.

Prior to 1 March 2009, the payment of maintenance pursuant to the Family Law Act was limited only to married couples.

Now, parties who have been in de facto relationships which ended after 1 March 2009 or where the parties are prepared to 'opt in' to the provisions of the Family Law Act which apply to de facto couples are entitled to seek maintenance orders.

The court has considerable power pursuant to section 80(1) of the Family Law Act (for married couples) and section 90SS(1) (for de facto couples) to make maintenance orders. These orders include the following:

  • payment of a lump sum, whether in one amount or by instalments;
  • payment of a weekly, monthly, yearly or other periodic sum;
  • that a specified transfer of property be made; and
  • any other order which the court thinks is necessary.

Requirements for married spouses

In accordance with section 72 of the Family Law Act:

(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

Therefore, in short, there are two necessary limbs for a maintenance application:

  1. that one party is reasonably able to maintain the other party; and
  2. that the other party is unable to support herself or himself adequately.

Section 75(2) of the Family Law Act contains a comprehensive list of the matters the court shall take into account when considering an application for maintenance.

It would be prudent for any party who is considering making such an application to review section 75(2) and identify the relevant matters for their particular case.

Requirements for de facto partners

In accordance with section 90SF of the Family Law Act:

(1) In exercising jurisdiction under section (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:

(a) only to the extent that the first-mentioned party is reasonably able to do so; and

(b) only if the second-mentioned party is unable to support himself or herself adequately

whether:

(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or

(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(iii) for any other adequate reason.

Accordingly, the threshold tests for de facto partners to make a maintenance application are:

1. that with respect to the de facto relationship, the court must be satisfied that:

a. the period or periods of the de facto relationship is at least 2 years; or

b. that there is a child of the de facto relationship; or

c. that the applicant partner either made substantial contributions to the de facto relationship (as outlined in section 90SM(4)) or a serious injustice would result if the court did not make the declaration; or

d. that the relationship is or was registered; and

2. that with respect to the geographical requirements, the court must be satisfied that:

a. that either or both of the parties were ordinarily resident in a participating jurisdiction (i.e. a state or territory which has referred power to the Commonwealth to make orders with respect to de facto relationships); and

b. that the parties :

i. lived together for at least one third of their de facto relationship; or

ii. the applicant made substantial contributions during the de facto relationship (as outlined in section 90SM(4)); or

iii. the parties lived together in a participating jurisdiction when the de facto relationship broke down; and

3. that one party is reasonably able to maintain the other; and

4. that the other party is unable to support himself or herself adequately.

Section 90SF(3) of the Family Law Act contains a comprehensive list of the matters the court shall take into account when considering an application for maintenance.

It would be prudent for any party who is considering making such an application to review section 90SF(3) and identify the relevant matters for their particular case.

Jurisdictional pitfalls

There are two situations where parties may find that they are unable to apply for maintenance orders:

1. if property settlement proceedings were not commenced within:

a. 12 months of the date of the parties' divorce (if married); or

b. two years of separation if the parties were in a de facto relationship; and

2. if the parties entered into a binding financial agreement which deals with maintenance.

If either party has not commenced property settlement proceedings within the time frames above, then technically they are out of time to seek orders from the court with respect to spousal maintenance.

However, the court may grant leave to a party to apply for maintenance pursuant to section 44(4) for married couples and section 44(6) for de facto couples if the court is satisfied that:

1. hardship would be caused to the party or a child if leave were not granted; or

2. if at the end of the period when the party could have commenced proceedings, the party's circumstances were such that they would have been unable to support himself or herself without an income tested pension, allowance or benefit.

Tips for succeeding in maintenance applications

The following tips will hopefully assist any parties wishing to make an application for maintenance:

  • Distinguish between wants and reasonable living expenses. Applicant parties should go into as much detail as possible about their reasonable living expenses and those of their children (if applicable) in their affidavit material to justify why the court should grant the orders they seek. Items which a party might 'want' but do not 'need' should be avoided.
  • Outline pre-separation living standard. While sometimes it is simply not possible for separated parties to maintain a standard of living enjoyed whilst they were together under the one roof, the courts will try to continue this standard if it is reasonable in the circumstances.
  • Provide details about the other party's income and expenditure. Respondent parties will often claim that they are unable to pay the applicant maintenance as they have no financial capacity to do so. Identify if the respondent's expenditure and whether it is consistent with their expenses prior to separation.
  • Be realistic with an application for maintenance. There is little point in asking for an amount of maintenance which cannot be justified or is simply not reasonable given the facts of the case. To ensure that a maintenance application does not frustrate the judicial officer determining the matter, take care to balance the payment sought with the other party's capacity to pay.

For further information please contact Craig Turvey of Cooper Grace Ward's Family Law team via 61 7 3231 2569 or craig.turvey@cgw.com.au.

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