Under the Family Law Act 1975 (‘the Act’), a party to a marriage or de facto relationship is liable to maintain the other party to the extent that they are reasonably able to do so and only if the other party is unable to support themselves adequately by reason of:
- Having the care and control of a child of the marriage who is not yet 18 years of age;
- Age or physical/mental incapacity for appropriate gainful employment;
- Any other adequate reason having regard to the matters under s75 of the Act if married and section 90SF if a de facto relationship.
Test applied by the court
The mechanism adopted by the court to determine whether it is appropriate for spousal maintenance to be paid is the following:
- Determine your ability to meet your own living expenses.
- Determine the shortfall (if any) between your ability to financially support yourself and your reasonable day to day living expenses.
- Consider the other party’s income and reasonable living expenses, and whether there is any surplus from which s/he can contribute to the shortfall in your reasonable day to day living expenses.
- Consider, in the circumstances of your future needs, whether it is just and equitable to make a spousal maintenance order.
Prior to making any orders for spousal maintenance on a final basis, the court must first consider the assets which you and the other party are to receive/retain as part of your property settlement, and if those assets can be applied to assist in meeting your living expenses (for example, investment properties which may yield rental income).
Types of spousal maintenance
Spousal maintenance can be in the form of periodic payments or a lump sum. Periodic payments can be made for a fixed term (generally a period required for the receiving party to re-train to obtain gainful employment) or, in exceptional circumstances, for life.
There are three types of applications for maintenance that can be sought, being:
- Urgent maintenance;
- Interim order for maintenance; and
- Final order for maintenance.
The court can make an order for urgent maintenance in cases where:
- A party is in immediate need of financial assistance; and
- It is not practicable in the circumstances to determine immediately what order, if any, should be made.
Factors that must be considered
The matters to be taken into account when considering a spousal maintenance application are
- Age and state of health of each party;
- The income, property and financial resources of each party and the physical and mental capacity of each for appropriate gainful employment;
- Whether either party has care or control of a child of the relationship;
- The commitments of each party that are necessary to enable the party to support either themselves and a child or another person that the party has a duty to maintain;
- The responsibilities of either party to support any other person;
- The eligibility of either party for a pension, allowance, benefit or superannuation;
- A standard of living that in all the circumstances is reasonable;
- The extent to which payment of maintenance would increase the earning capacity of the applicant by enabling that party to undertake a course of education or training to establish themselves in a business or obtain an adequate income;
- The extent to which the applicant has contributed to the income, earning capacity, property and financial resources of the respondent;
- The duration of the relationship and the extent to which it affected the applicant’s earning capacity;
- The need to protect a party who wishes to continue that party’s role as a parent;
- Financial circumstances relating to cohabitation with another person;
- The terms of any order made or proposed to be made in relation to the property of you and the other party, including any child support that a party has provided, is to provide, or might be liable to provide in the future for a child of the relationship;
- Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
- The terms of any financial agreement that is binding on you and the other party.
Cessation of maintenance orders
An order with respect to maintenance of a party ceases to have effect upon:
- The death of the party; or
- The death of the person liable to make payments under the order; or
- Marriage of the party (unless in special circumstances).
Maintenance orders ordinarily do not exceed 5 years except in exceptional circumstances.