Application for Spousal Maintenance?

20/10/2014

What are the circumstances in which a party to a marriage or de facto relationship can claim maintenance/support (spousal maintenance) from the other party to the relationship?

The Family Courts have the power to order that one spouse pay the other spouse maintenance on an emergency basis.  This is called spousal maintenance.  Section 72 of the Family Law Act provides that a spouse to a marriage is liable to maintain the other spouse to the extent that they are able maintain the other spouse if that spouse cannot support themselves adequately because:

  1. The other spouse has the care and control of a child of the marriage who is under the age of 18;
  2. by reason of physical and mental incapacity for appropriate gainful employment; or
  3. of other adequate reasons. 

The Court can therefore order a property settlement or division of property between the spouses AND order that there be ongoing spousal maintenance payments. 

The threshold test applied by the Family Court in determining whether or not spousal maintenance should be ordered is twofold:-. 

  1. The Court has to determine whether the person seeking an order for payment of spousal maintenance is able to meet their own expenses or not.  The question is whether their income (or potential income) is sufficient to pay their expenses.  The question is whether there is a shortfall of income to pay expenses.  If there is a shortfall then one considers the second issue which follows.
  2. The Court has to consider the financial circumstances of the person against whom the spousal maintenance claim is made (the Payer).  Before a Payer applies to make payment for a spousal maintenance one needs to look at his or her expenditure.  Only if the Payer earns or is capable of earning in excess of his or her expenses when you look at his or her capacity. If there is a surplus rather than a shortfall of income over expenses then an order for spousal maintenance could be made. Both parts of the threshold test referred to in the previous paragraph must be satisfied before an order for spousal maintenance will be made. 

In a recent decision of the Family Court of Australia Justice Rees declined to make an order for payment of spousal maintenance to the wife in circumstances where the wife had a significant income and was also receiving child support.

The right to apply for spousal maintenance also applies to De Facto relationships however the rules are slightly different.

Can a spousal maintenance claim be made after property settlement?

The right to apply for spousal maintenance is still available even after a property settlement.  It is possible to exclude claims for future spousal maintenance by entering into a proper Binding Financial Agreement.

Binding Financial Agreements are agreements between parties rather than orders that may be made by the Court.  Binding Financial Agreements can be made before, during or after a marriage or de facto relationship.  If the Binding Financial Agreement is made after the breakdown of the relationship then care must be taken to ensure that documenting the agreement is properly recorded.  There are dangers and there are special requirements to ensure that the Binding Financial Agreement is in fact binding and to exclude future spousal maintenance claims. 

Also, there are circumstances in which even a Binding Financial Agreement can be set aside.

We can assist you in relation to these matters.

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