Spousal Maintenance enables a spouse or partner who cannot adequately support themselves to obtain financial assistance from the other spouse who has the reasonable capacity to support the other spouse in accordance with section 74 or s90SE(1) of the Family Law Act (1975) (“the Act”). There is a threshold required to be satisfied to enable one spouse to be eligible for a claim of spousal maintenance pursuant to section 72(1) or 90 SF(1) of the Act. This must be considered considering a range of factors provided in section 75 (2) or 90SF of the Act.

In circumstances where one spouse requires immediate financial assistance from the other spouse, the Court may decide that these financial needs are so urgent and immediate and therefore may make orders for the capable spouse to pay these needs pending finalisation and consideration of the matter at large.

The  

Section 77 of the Act states for spouses:

Urgent spousal maintenance cases

Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the Court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the Court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the Court considers reasonable.

Section 90 SG of the Act states for partners in a de facto relationship:

            Urgent maintenance cases

If, in proceedings with respect to the maintenance of a party to a de facto relationship in accordance with this Division, it appears to the Court that:

(a)  the party is in immediate need of financial assistance; and

(b)  it is not practicable in the circumstances to determine immediately what  order, if any, should be made;

the Court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the Court considers reasonable.

Note 1:       The geographical requirement in section 90SD must be satisfied.

Note 2:       The Court must be satisfied of at least one of the matters in section 90SB.

There are several circumstances where it may not be practical for a Judge to determine any interim or final orders that may be made in relation to a claim for spousal maintenance. There may be situations where one spouse has a pressing need for urgent financial relief which they cannot adequately provide themselves, but the other spouse may be able to provide. This may also include situations where both parties have not filed all supporting material they seek to rely upon including their financial statement which sets out their current financial position including assets, liabilities, weekly expenditure or their affidavit which sets out they evidence they seek to rely upon to support or defend their claim. In such situations, this section is enlivened, and a Court may order the capable spouse to make a lump-sum payment or periodic sum payment of urgent spousal maintenance.

Case Law

The assessment of case law surrounding these type of applications provides that they should only be used in cases as the “relief of immediate needs” intended to be a “stop-gap order” to deal with “urgent situations” as distinguished in Ashton & Ashton [1982] FamCA9. Justice Nygh distinguished that applications pursuant to section 77 are generally heard in circumstances when all the evidence has not yet been filed or supplied to the Court and may be heard without the respondent being present due to an early return date.

In Hayson and Hayson (1987) FLC 91-819 the Court overturned an order made pursuant to section 77 of the Act for urgent spousal maintenance. The facts of this case involve voluntary spousal maintenance payments paid by the husband towards the wife. The wife sought accommodation that was closer to the husband to enable the children to stay with her overnight. The wife entered into a lease agreement that she could not afford without consulting her husband who was making adequate spousal maintenance payments voluntarily. The Court held that this was not an immediate need to justify her application for urgent financial assistance.

Milano & Nolan [2018] FCCA 3901 was heard on 19 December 2018 in the Federal Circuit Court of Australia. Justice Mercuri noted that Centrelink payments may be considered in the evaluation of Immediate needs pursuant to section 77 of the Act. Section 75 (2) (f) provides that Centrelink payments cannot be considered when determining the capacity for one spouse to maintain themselves pursuant to section 74 of the Act. However, Justice Mercuri’s approach concluded that there is nothing in the law preventing Centrelink payments from being considered when determining an application that is pursuant to section 77 of the Act when considering the immediacy of needs. Using this approach, Justice Mercuri found that there was insufficient evidence to support a weekly maintenance claim considering the applicant’s current financial position including receipt of Centrelink payments. The applicant was however awarded lump-sum payments to assist with her urgent medical procedures and bills which could have caused her more financial and health stress had these payments not been awarded.

What does this mean?

If you have pressing financial needs that you cannot adequately provide yourself, you may be able to seek assistance from your spouse or partner who has the capacity to support your immediate needs. It may be heard without full evidence or material being filed in Court and without the appearance of your spouse or partner. The Court will assess your financial position and your needs and decide based on the circumstances of the case and the urgent relief sought whether to grant an order pending the further hearing of the matter.

The above information is intended as general information and is not intended to be relied on as legal advice. If you are considering applying for urgent spousal maintenance or are responding to an application for urgent spousal maintenance contact one of our experienced family law solicitors on (02) 9920 1787 to discuss how we may assist you to achieve a favourable outcome. 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 practice extensively in Family Law, Criminal Law, Commercial Law and Conveyancing.