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How Long do I have to Pay Spousal Maintenance? Till Death do us Part?

26/05/2021

The Family Law Act 1975 provides (Section 72) that a party to a marriage is liable to maintain the other party to the marriage to the extent that a party is reasonably able to do so but only if the other party is unable to support himself or herself by reason of:

(a)      Having the care of a child of the marriage who has not attained the aged of 18 years.

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

(c)      For any other adequate reason.

The same situation exists for de facto spouses (section 90SE). 

How Does a Court Decide When to Order Payment of Spousal Maintenance?

Even though the parties may be separated and divorced, the Family Court of Australia or the Federal Circuit Court can still Order payment of spousal maintenance.  Payment of spousal maintenance can also be ordered to be paid before there is a separation or divorce and the Court can make these Orders on an urgent basis. 

In practice when determining whether the parties should be ordered to pay spousal maintenance, the Family Court of Australia or the Federal Circuit Court will apply a two part test.  The Court will first determine whether the person seeking an Order for payment of spousal maintenance has a shortfall between their income and their expenditure.  The second part requires the Court to determine whether the person who is being asked to pay spousal maintenance has a surplus of income over expenditure? 

If both components of the test are satisfied, the Family Court of Australia or the Federal Circuit Court may order payment of spousal maintenance by one spouse to the other.  The amount of the payment will involve the Court considering the financial position of both parties to determine what amount is needed and what amount can be offered. 

Any application for a spousal maintenance Order must be made within 12 months of a divorce.  Time limitations apply to de facto couples.  The application must be made within 2 years of separation. 

When does spousal maintenance cease?

It might be assumed that spousal maintenance would cease after the expiration of a period that is considered reasonable i.e. after a few years.

The reality is quite different.  If an order for payment of spousal maintenance in a particular amount is made (as distinct from a lump sum payment) then that amount must be paid until the period for which the Order requires spousal maintenance to be paid expires.  A problem arises if the Order does not include an end date or stipulate a terminating event. 

If the Order does not have a cease date then the spousal maintenance must continue to be paid.  If this is the situation then the Family Court of Australia or Federal Circuit Court will need to terminate the Order.  An Application to the Court will need to be made to seek an Order terminating the obligation to pay. 

Terminating Events

There are certain events which will terminate the liability to pay spousal maintenance and those events are:

(a)      The death of payer.

(b)      The death of the payee. 

(c)      The marriage of the payee (to another person) or entry into a de facto relationship (with another person). 

Watson & Watson Lawyers – Application to Vacate Spousal Maintenance Order 

In a recent case Watson & Watson acted for the husband.  The husband had (many years ago) entered into Consent Orders which were approved by the Family Court of Australia.  In addition to ordering a lump sum payment, the Orders required the husband to continue to pay to the wife monthly spousal maintenance.  The periodic amounts were significant.  The Order that was made did however include a date for terminating the obligation to pay spousal maintenance. 

The husband ceased paying spousal maintenance after a period of 13 years.  The former wife made an Application to the Court for enforcement. 

Watson & Watson made an Application to the Court to vacate the spousal maintenance orders and to vacate the orders that would have assisted the ex-wife in enforcement of the proceedings.

Basis for Application to Vacate Spousal Maintenance Order

The financial situation of the husband had changed over the years that he had been paying spousal maintenance.  He did not seek legal advice until the ex-wife commenced enforcement proceedings.  Watson & Watson advised the ex-husband and made an application to the Court to terminate the ongoing spousal maintenance Order. 

The husband’s situation had changed for the following reasons:

  • He had permanently retired. 
  • He has re-partnered and had a child. 
  • His income had decreased. 
  • He had health issues. 

Watson & Watson prepared the ex-husband’s evidence and set out his financial situation in detail.  On the basis of the evidence provided, the two point test could no longer be satisfied.  The ex-wife still needed support but the ex-husband did not have the financial capacity to pay.  The Order to pay spousal maintenance was vacated and the obligation of the ex-husband to pay spousal maintenance to the ex-wife was ended. 

If you are in a position where you are unable to continue to pay spousal maintenance or have had a change in circumstances which has impacted your ability to pay or precludes you from paying spousal maintenance, do not delay seek appropriate advice.  Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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