Separation from a partner can be difficult and challenging. It also comes with added financial stress and uncertainty. In some circumstances, a spouse might be entitled to a spousal maintenance order.
What is a spousal maintenance order?
The courts have the power to make an order requiring one spouse to maintain the other spouse in circumstances where the first spouse has the capacity to pay the second spouse maintenance and the second spouse is unable to support themselves adequately.
In the case of Branchflower and Branchflower (1980) FLC 90 the courts defined maintenance as broad concept that not only includes income and means of income but also what the income might be used for. Spousal maintenance order can include:
- Periodic and/or lump sum payments; and/or
- Use of properties; and/or
- Right to occupy a home.
Applications for spousal maintenance can be made during a marriage, within 12 months of a divorce order or with 2 years of the breakdown of a de facto relationship.
How do the courts determine a claim?
For a court to make a spousal maintenance order, the court must make a threshold finding under s72 Family Law Act (Cth) 1975 for marriages or s90SF(1) Family Law Act (Cth) 1975 for de facto relationships. There is a threshold finding if:
- There is a child of relationship that has not reached the age of 18; or
- Due to age or physical/ mental incapacity to obtain employment; or
- Any other adequate reason.
The courts then reflect on the consideration in ss74 and 75(2) Family Law Act (Cth) 1975 or ss90SE(1) and 90SF(3) Family Law Act (Cth) 1975 for de facto relationships. These considerations include but are not limited to:
- Age and health of both parties; and
- Income and financial resources of the parties and their physical and mental capacity to gain employment; and
- If there is a child of the relationship under the age of 18; and
- Commitments of each party to support; and
- Himself or herself; and/or
- Any children of the relationship under the age of 18.
- Eligibility of either party for a pension or allowance; and
- Reasonable standard of living in the circumstances; and
- How the maintenance order will help the spouse’s ability to support himself/herself in the future; and
- Any child support orders and other considerations
The next step involves the court to exercise its discretion under s74 Family Law Act (Cth) 1975 and make the order if it thinks it is ‘proper’ in the circumstances. The court makes the orders under ss80(1) and (2) Family Law Act (Cth) 1975 or ss90SS(1) and (2) Family Law Act (Cth) 1975 for de facto relationships.
The courts In the Marriage of Bevan (1995) FLC 92-600 held that there is no fettering principal so there is no need to maintain the spouse’s previous standard of living. However, adequate support has been interpreted to mean a level of support above a subsistence level.
Types of spousal maintenance
Urgent spousal maintenance order
The court has the power to make an urgent spousal maintenance order under s75 Family Law Act (Cth) 1975 for a marriage and under s90SG Family Law Act (Cth) 1975 de facto relationships. The court is not required to undergo a detailed consideration of the matters in ss72 and 75 Family Law Act (Cth) 1975.
Interim spousal maintenance order
The court has the power to make an interim spousal maintenance order under s80(1)(h) Family Law Act (Cth) 1975 for marriage and under s90SS(1)(h) Family Law Act (Cth) 1975 de facto relationships. The courts will apply the steps above in determining the order but due to time constraints, the courts ability to consider all the matters in great detail is curtailed.
If you need expert legal representation in Family Law matter, please contact Pannu Lawyers on 02 9920 1787. Our principal is named as leading Family and Matrimonial Lawyer of the Year by Acquisition International in their 2019 leading Adviser Awards. Pannu Lawyers are conveniently located in Blacktown and extensively practice Family Law, Criminal Law, Commercial Law and Conveyancing.
