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 Spouse maintenance |
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Marriage creates a number of mutual rights and responsibilities between spouses. Partners to a defacto relationship cannot apply for spousal maintenance under the Family Law Act. The Family Law Act provides that a person has the responsibility to financially assist their spouse if their spouse cannot meet their own reasonable expenses from their personal income or assets. This obligation continues after separation and divorce. The extent of the support will depend on what the other spouse can afford to pay and the needs of the person applying for maintenance.
The basis of this responsibility to support a spouse was described by a Californian Judge (referring to the support of a wife) when he said:
"A woman is not a breeding cow to be nurtured during her years of fecundity, then conveniently and economically converted into cheap steaks when past her prime. If a woman is able to do so, she certainly should support herself. If however she has spent her productive years as a housewife and mother and has missed the opportunity to compete in the job market and improve her job skills, quite often she becomes, when divorced, simply a displaced homemaker"
A long marriage can and often does have a significant effect on a part's income and earning capacity.
Before the court will grant a spouse maintenance order it must be satisfied that:-
1. The spouse requesting maintenance is unable to support himself or herself; and
2. The other spouse is reasonably able to support the other spouse.
There are a variety of factors which the Family Court is obliged to consider when faced with an application for spouse maintenance. They are:
1. The age and state of health of each of the parties;
2. The income, property and financial resources of each of the parties and their physical and mental capacity to gain employment;
3. Whether either party has the care and control of any child of the marriage under the age of 18;
4. The commitments of either party to support themselves or others;
5. The eligibility of either party to a benefit or pension from the Government or superannuation fund or scheme;
6. A reasonable standard of living;
7. The extent to which the payment of maintenance would enable a party to increase his or her earning capacity by enabling that party to undertake a course of education or training or to establish him or herself in a business or otherwise to obtain employment;
8. The extent to which the party seeking maintenance has contributed to the income, earning capacity, property and financial resources of the other party;
9. The duration of the marriage and the extent to which it has affected the earning capacity of the party seeking maintenance;
10. The need to protect a party who wishes to continue that party's role as parent;
11. If either party is cohabiting with another person - the financial circumstances relating to the cohabitation;
12. Any property settlement orders made or proposed;
13. Any child support which a party is paying or is liable to pay to the other party;
14. Any fact or circumstance which in the opinion of the court, the justice of the case requires to be taken into account, and;
15. The terms of any financial agreement that is binding on the parties.
This is quite an extensive list which requires an in depth analysis of the parties financial circumstances, both present and future. It is important to remember at this stage that no matter how much one party may be in need of spouse maintenance if the court determines that the other party does not have the resources to pay they will not be required to do so.
If parties can agree to an amount of spouse maintenance they can record that agreement in Consent Orders which are then enforceable by law.
Once a spouse maintenance order has been made you can apply to vary that order when there has been a change in circumstances since the order was made and/or it is discovered that important information was not given to the court a the time the order was made.
A spouse maintenance order can be made to provide either periodic payments or a lump sum amount. A Lump sum payment is an amount of money or property paid to a former spouse instead of periodic payments of maintenance. Periodic maintenance is money paid for the support of another spouse in fixed amounts at regular intervals of time. It is more usual for a lump sum maintenance order to be made as part of a property settlement rather than periodic payments continuing indefinitely. This will not be the case in all matters however, and you should consult with your solicitor about those circumstances in which this will be appropriate.
Spouse maintenance orders can be made on an interim and a final basis. If one party is in urgent need of maintenance to support themselves they can apply to the court to have a temporary spouse maintenance order made until such time as the matter goes to trial and a final order can be made.
An Accredited Family Law Specialist will be able to advise you specifically as to your right to receive, or potential liability to pay, spousal maintenance.
February 2001
February, 2001
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