- Family Law
- Lawyers & Staff
- Cases & Articles
- Contact Us
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:
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:-.
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.
Personal Experienced Professional Affordable
Phone 02 9221 6011Send us your enquiry