So, we have a relationship break down – how do we sort
It is one of the most challenging aspects of family law –
who gets what and who owes whom - when a relationship breaks down
and maintenance is being negotiated.
Consider this article as an overview and checklist to help you
navigate your way to a solution.
What is Spousal Maintenance / De Facto Partner
Spousal maintenance or de facto partner maintenance refers to a
payment made by one party to the other to assist them to meet their
expenses. A spouse and a de facto partner (including a same sex
partner) may seek maintenance; however parties do not have an
automatic right to maintenance and can only be paid with the
agreement of the other party or by obtaining Court orders providing
What is required? It's all about the documents:
When determining if a party should receive maintenance, the
Court assesses his or her ability to adequately support themselves
('need') and the other party's ability to pay
('capacity'). As this is done on the basis of documents
provided to Court, it is important for both parties to provide
their lawyers with detailed information regarding their income,
expenses, assets and liabilities.
Your information should include:
Employment contract or letter of offer from the employer,
including documents showing what benefits and bonuses are
Pay slips or other documents showing your current
Information about your work history (such as a resume);
Bank statements and credit card statements;
If you are not in the workforce, the likelihood of you becoming
employed (such as job applications or rejection letters) and / or
the costs and time of retraining;
Invoices and receipts for the payment of expenses such as rent,
food, electricity, gas, petrol, insurances, entertainment, and so
Other things to consider:
Need is not necessarily based on the expenses a party
currently incurs. For instance, if a party's spending
patterns have changed because of the separation, it is not
unreasonable to take into account expenses they would typically
have incurred prior to separation. Conversely a party cannot claim
expenses for which need or a previous pattern of expenditure cannot
A party is usually not required to sell or deplete existing
assets in order to support himself or herself. However, this is a
matter of balance and reasonableness.For example, if it can be
shown that a party has substantial funds in a bank account but is
claiming further sums for maintenance, the Court may not
necessarily make an order for maintenance because that party can
maintain himself or herself and the amounts in the bank account
expended can be taken into account at the end of the day.
When determining need, it is important to note that spousal
maintenance is not the same as child support. The breakdown of
expenses for a party should separately identify the expenses of the
child/children. While this may sometimes be an artificial estimate
(for instance, how much of an electricity expense has been incurred
due to the child/children), it is important to make these
Capacity is not necessarily assessed on a party's current
income. If a party is practically able to earn an income but
deliberately chooses to be underemployed or unemployed so that they
will not be ordered to pay maintenance, the Court has the
discretion to determine that the party has capacity.
The receipt of any government benefits is disregarded as
'income' for the purposes of spousal maintenance.
Just because one party has the capacity to pay does not mean he
or she has to pay his or her surplus income to the other party. If
the Court finds that one party cannot establish need, it is
irrelevant how much capacity the other party might have in the
determination of a maintenance claim as the other party will not be
required to pay maintenance.
Why is this important?
Interim maintenance is sometimes ordered by the Court to be paid
for a period of time between separation and the finalisation of the
parties' financial matters. Maintenance can also be paid after
final settlement until a certain terminating event occurs.
Due to the size of the current Court lists, cases are taking
longer to be heard by a Judge. It is therefore not uncommon for it
to take upwards of 18 or even 24 months before parties have a
defended final hearing of their case.
At Swaab, we urge you to seek advice as to your rights
and obligations as soon as possible. This is very
important, especially if you are the party seeking spousal
maintenance. Delays in the final resolution of a case may have a
significant impact on your financial position.
We can advise you so that you can balance what you are seeking
with your projected legal costs and are able to advise you as to
what is appropriate in all the circumstances.
Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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