Parties who have experienced the breakdown of a marriage and are navigating the landscape of resolving property settlement matters often encounter issues relating to Spousal Maintenance. That is, the financial support by one party to the other of the marriage.

Is the party requesting the maintenance unable to adequately support themselves?

A party seeking spousal maintenance must first establish that he/she is unable to adequately support themselves based on the factors outlined in section 72 of the Family Law Act. That section provides:

(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment;
(c) for any other adequate reason;

In Court proceedings, parties are required to file a document called a Financial Statement which sets out the income and expenditure of each party, in addition to the assets, liabilities, superannuation and financial resources that they have an interest in.

This document is a useful tool for parties not involved in litigation when ascertaining whether there is a "need" for spousal maintenance.

Does the party being asked to meet a spousal maintenance payment have the capacity to pay?

At first instance, it is relevant to determine whether the party being request to meet a payment for spousal maintenance has the capacity to meet such a payment. If that party's income exceeds their expenses, it may be determined that the party has capacity to meet a payment.

In some circumstances, a party may say that they do not have the income to be able to meet a payment for spousal maintenance. Income however is not the only consideration to be had and as determined in the case of Maroney & Maroney [2009] FamCAFC 45 at [56] regard may also be had to the capital of the party being asked to meet a payment for spousal maintenance and the capacity to borrow.

Matters to be considered relating to a request for spousal maintenance

In determining a request for spousal maintenance, the Court will take into consideration the matters contained within section 75(2) of the Act, including but not limited to:

  1. The age and state of health of the parties.
  2. The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.
  3. Whether either party has care or control of a child who is not yet 18.
  4. What the commitments of each of the parties are to enable them to support themselves of a child or another person that party has a duty to maintain.
  5. The eligibility of either party for a pension, allowance, benefit or superannuation.
  6. Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable.
  7. The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party.
  8. The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.

Types of spousal maintenance

A party can make an Application to the Court for:

  1. Urgent Spousal Maintenance;
  2. Interim Spousal Maintenance; or
  3. An order relating to Spousal Maintenance on a final basis.

Section 81 of the Act requires that the Court, as far as practicable, make orders that "finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them." As such, most Orders made with respect to spousal maintenance are on a final basis will only be for a fixed period.

Time Limitations

A party to a marriage who intends to make an application for spousal maintenance must do so within 12 months of the date of a divorce order being made. If this time period lapses, an application to the Court must be made to seek leave to make the application out of time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.