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The power to make orders for spousal maintenance in respect of a married couple is found in section 74(1) of the Family Law Act. The section creates a very wide power and allows the Court to make such order as it considers proper for the provision of maintenance in accordance with the power. The criteria to be taken into account in determining whether or not to make an order are set out in section 75(2) of the Family Law Act.
The power to award spousal maintenance in de facto matters (following amendment of the Family Law Act) is wider than the old Property (Relationships Act) NSW 1984. It is still not as wide as the maintenance provisions available to a married couple.
The contract provision is section 90SE(1) of the Family Law Act. An order may only be made after the de facto relationship has broken down and the Court may make such an order “as it considers proper” for the maintenance of one of the parties to the de facto relationship in accordance with this division.
Section 90SF of the Family Law Act sets out virtually the same set of criteria as section 75(2) of the Family Law Act. However, the position for de facto couples is not as generous as that for married couples because:-
A. the Court will only order a party to a de facto relationship to pay maintenance to the extent to which the first mentioned party is reasonably able to do so; and
B. only if the second party is unable to support himself or herself adequately whether by reason of having the care and control of a child or by reason of age, physical and mental incapacity for appropriate gainful employment or any other adequate reasons .
There are two additional requirements which must be satisfied before a Court can make an order.
There is a geographical requirement – section 90SD of the Family Law Act must be satisfied.
This means that:-
(a) Either or both of the parties to the de facto relationship must have been ordinarily a resident in a participating jurisdiction when the application for the order was made; and
(i) Both parties to the de facto relationship were ordinarily residents during at least 1/3 of the de facto relationship; or
(ii) That the applicant for the order made substantial contributions in relation to the de facto relationship of the kind mentioned in section 90SM(4) of the Family Law Act; or
(iii) In one or more state or territory that are participating jurisdictions
The applicant must satisfy at least one of the matters in section 90SB of the Family Law Act which means that:-
(a) That the period of the total periods of the de facto relationship is at least 2 years; or
(b) That there is a child of the de facto relationship or that
(i) Substantial contributions;
(ii) That failure to make maintenance orders would resolve in serious injustice to the applicant; or
(d) The relationship is or was registered under a prescribed law of a state or territory.
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