An introduction to the laws relating to the of right of spousal maintenance after divorce

by The FindLaw Team

Section 72 of the Family Law Act 1975 (Cth) (the Act) allows one spouse in a party to a marriage to maintain the other in the event that the marriage has been terminated by divorce or the marriage has been annulled.

The provisions of s 72(1) of the Act, states the following:

“(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; or
               (c)  for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).”

What conditions must be met for spousal maintenance?

In order for one spouse to be maintained by the other, there are two general conditions that should be met. First, one spouse must be “unable to support herself or himself adequately” by the reasons set out in s 72(1). Secondly, the other spouse is reasonably able to maintain the other party. In the Marriage of Sharpe (1978) 31 FLR 500 at 501, Toose J noted that unless both conditions are met, there may be no maintenance liability for either spouse.

How is the inability of a spouse to support herself or himself adequately, determined?

In the Marriage of Murkin [1980] FLC 90-806, Nygh J observed the following in respect to maintenance of a wife (at 75,081):

“In my opinion the issue is not whether the wife is receiving sufficient funds, but whether she is able to support herself adequately, that is whether she can generate funds from her own resources or earning capacity to supply her own needs. A woman who is dependent on payments on social security benefits, voluntary payments by a former husband or by friends and relatives is not able to support herself. She has to be supported by others... The threshold test in terms of s 72 is ability to support one’s self, not need.”

When looking at the meaning behind “adequately”, we can turn to the comments of Lindenmayer J In the Marriage of Nutting (1978) 30 FLR 555 (at 556), in which the term “’adequately’ imports a standard of living which is reasonable in the circumstances.” 

In the event of separation, there are a couple of things that the court may consider, starting with the standard of lifestyle prior to separation. Although, In the Marriage of Gamble (1978) 32 FLR 198, Fogarty J observed in the Family Court of Australia, when discussing the standard of living, it does not necessarily mean what the parties were accustomed to when they were together due to the fact that (at 202), “a situation where there are now two households rather than one makes it, in most cases, impossible to sustain the previously existing standard of living in both of those new households.” Additionally, when resources are limited, the courts have generally concluded that one party should not enjoy a higher standard of living than the other, as was noted In the Marriage of Lusby (1977) 30 FLR 555 at 556.

Maintenance in de facto relationships

When looking at maintenance for de facto relationships, beyond the condition that the relationship has broken down, the Act takes into account the length of the relationship (s 90SB), and the geographical requirement must also be met in order for maintenance proceedings to commence (s 90SD). The court must be satisfied when exercising jurisdiction in relation to maintenance proceedings both s 90SB and s 90SD are satisfied in matters involving de facto relationships.

 


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