Spousal Maintenance
What is spousal maintenance?
Spousal maintenance is the financial support paid by a party to a marriage to their spouse (or ex-spouse) so that they can adequately support themselves. Generally, such support is limited to a specific timeframe.
Section 72(1) of the Family Law Act 1975 (Cth) (The Act) sets out the threshold test for spousal maintenance. The test is:
Whether a party to a marriage is unable to support themselves adequately; and
Whether the other party has the ability to pay the spousal maintenance.
Section 72(1) of the Act sets out three circumstances which may cause the need for spousal maintenance to arise. These are:
By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
By reason of age or physical or mental capacity for appropriate gainful employment; or
For any other adequate reason.
The above factors are to be considered to any relevant matters referred to in subsection 75(2) of the Act. Section 75(2) of the Act outlines nineteen factors that may be taken into account by the Court when determining a grant of spousal maintenance. Some relevant factors include:
The age and state of health of the parties;
The parties’ income, property and financial resources;
The parties’ ability to work;
What is a suitable standard of living; and
If the relationship affected the parties’ ability to earn an income.
Once the applicant establishes the need for spousal maintenance, they must demonstrate to the court that the respondent is capable of reasonably maintaining them.
Spousal maintenance can be paid as:
A lump sum payment;
Interim basis;
Urgent basis.
There is a time limit for applications for spousal maintenance. These are:
Married: Applications must be made within 12 months of a divorce becoming final.
De facto: Applications must be made within 2 years of the breakdown of the de facto relationship.
An application for spousal maintenance can be made independently or at the same time as an application for property orders.
What is the test for spousal maintenance?
In the Marriage of Bevan (1995) FLC 92-600 (Bevan), the Full Court of the Family Court determined that an award of spousal maintenance requires the Court to consider four steps. In the matter of Hall v Hall [2016] HCA 23, the High Court confirmed that the approach applied in Bevan was correct.
Accordingly, the four steps are:
Can the applicant support themselves adequately? Can the respondent pay spousal maintenance?
When determining an application for spousal maintenance, the Court will consider the parties’ respective expenses. Expenses relating to children will not be considered as such expenses are to be dealt via child support.
It is important to remember that the test is not whether the applicant needs maintenance, but whether the applicant can support themselves. If the applicant can adequately support themselves by reason of their earning capacity, capital or other sources of income, an application for spousal maintenance will be dismissed.
The Section 75(2) factors:
Provided that the applicant has satisfied the threshold test above, the Court will consider the matters in Section 75(2) of the Act, including:
The age and state of health of each of the parties;
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;
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Commitments of each of the parties that are necessary to enable the party to support 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 or benefit;
Where the parties have separated or divorced, a standard of living that in all circumstances is reasonable;
The need to protect a party who wishes to continue that party’s role as a parent;
If either party is cohabitating with another person;
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The above list is not an exhaustive list of all additional considerations.
It is important to note that the right to spousal maintenance does not automatically flow from the applicant spouse receiving no or minimal income. In circumstances where a party to a marriage has the potential to earn an income, but is choosing not to exercise that potential, spousal maintenance may be refused.
The no fettering principle:
Although the Court will consider whether the applicant can adequately support themselves, there is no requirement that the maintenance provided by the respondent must be such as to maintain the applicant’s pre-separation standard of living.
Exercise the discretion: As per Section 74 of the Act, the Court is required to make an order for maintenance that is ‘proper’.
When considering an appropriate order, it is proper for the Court to also consider the applicant’s position after a property settlement including a consideration as to whether or not they should be required to reduce their own capital in order to contribute to their own maintenance. This is at the Court’s discretion.
What is interim spousal maintenance?
The Court is empowered by Section 80(1)(h) of the Act to make a maintenance order “until further ordered”. This is referred to as an interim maintenance order. Interim orders are made pending a further order of the Court and can be made either for an indefinite period or for a short-fixed term.
When determining an interim application, the Court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally” (Williamson & Williamson (1978) FLC 90-505). Although all the normal procedural steps for spousal maintenance applications are followed, the Court has a greater degree of flexibility than it would otherwise have in an application for a final maintenance order. Evidence on an interim application does not need to be as extensive and the findings not so precise when compared to an application for final relief. However, the threshold requirements as detailed above must still be established. Therefore, the burden is on the applicant to establish those threshold requirements.
What is urgent spousal maintenance?
As per Section 77 or 90SG of the Act, the Court has the power to order the payment of urgent spousal maintenance. To do this, the Court is not required to go through the comprehensive steps detailed above.
To make an order for urgent spousal maintenance, the Court must be satisfied that:
A party is in immediate need of financial assistance.
If an order is made it is usually for a limited period until the parties can file appropriate evidence.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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