Spousal maintenance is the financial support that one person gives the other, (if they were in a marriage or de facto relationship with each other), when one of them is unable to financially support themselves adequately following a breakup.

Application for Spousal Maintenance

If you are recently separated and in need of financial support from your ex, the first thing you need to find out is whether you are: entitled to, (and more importantly), able to receive the maintenance you require. The Court uses a two-pronged test, called the “threshold test”, to determine this. You must be able to prove that:

1. You are unable to support yourself “adequately” because of:
   • The “care and control” you have in relation to a child of the marriage or de facto relationship;
   • Your “age, physical or mental incapacity for appropriate gainful employment”; or
   • “Any other adequate reason”.
     
     AND
     
     
2. The person you are seeking maintenance from has the capacity (in other words, is financially able) to pay the amount required.  
   
   

If both (1) and (2) are proven, the Court is able to make spousal maintenance orders in a way best suited to assist your particular circumstances. Spousal maintenance may be granted as:

• Interim; and/or
• final orders; and
• urgent orders (subject to there being circumstances to justify it).
  
  

Unfortunately, it is not uncommon for family law cases to take a long time before they are resolved on a final basis. Depending on the state you are in, the number of cases already in the Court process and whether your case is considered urgent or not, a family law case can last for a number of years. If your financial needs are considered urgent, the Court can order urgent spousal maintenance. The biggest difference with an urgent application is that orders can be granted prior to all of the evidence being before the Court. This is allowed if your case is considered an emergency, and where it is clear that all of the evidence required does exists and will be provided in due course.

There is no exhaustive list of circumstances which are to be considered an emergency. It depends on the assessment of a number of factors within each individual case. That is why it is absolutely crucial to talk to our experienced family law team who will be able to advise you properly.  If your case does not tick the emergency boxes, but it is clear that you require spousal maintenance as soon as possible, interim orders can help meet your financial needs before the case can be resolved on a final basis. To seek interim orders, a person needs to have started their whole Court case first, having provided all of their evidence showing their needs and the other person’s ability to assist.  Our family lawyers will be able to guide in the proper preparation of all of this.

When the Court deals with a case on a final basis, there is usually no going back for more after that, unless you are entitled to a review of the orders (discussed later in this article). Final orders can be anything that the Court decides will best assist the person in financial hardship, while ensuring that the person required to assist is not being placed in financial hardship as a result. It is important to remember that being granted interim maintenance does not automatically give you the right to final maintenance. Whether final maintenance orders will be granted depends on a multitude of factors and as mentioned previously, each case is different.

Clients should be aware that spousal maintenance payments can be paid out periodically (for example weekly or monthly), or in the form of a lump sum (one-off) payment. The latter is often the more preferred due to the nature of totality with the payment. The smaller, continuous, periodic payments are not without their benefits, however, a practical difficulty arises when the party ordered to pay, does not do so. In these instances, the person owed maintenance would need to return to the Court to enforce the payments that were missed. This can get expensive and time-consuming, especially since unlike periodic child support payments, spousal maintenance is not automatically deducted from your ex’s income or ‘paycheque’.

If your former partner does not have sizeable savings or a substantial income, this does not necessarily mean that you would not be able to receive spousal maintenance. If a person is found to have an obligation to provide spousal maintenance, their obligation can be satisfied through the transfer of property. The type of maintenance you get will not be based on your personal preference, but rather what the Court decides to be the most appropriate. That will depend on the facts of your case and how effectively your legal team presents your case to the Court.

An exception to the above is where the parties have their own agreement in relation to spousal maintenance. Our family law team has, on many occasion, assisted parties to negotiate and come to a legally-binding agreement with each other, circumventing the need to go to Court.

Variation of Existing Spousal Maintenance Orders

COVID-19 has caused a lot of people to experience “significant changes in circumstances” in their lives, which can allow for a review and variation of existing spousal maintenance orders. Under certain circumstances, for example, if you are already receiving spousal maintenance, but subsequent to those orders being made you find yourself jobless, you can apply to the Court on account of the new hardship.

A review and/or modification of existing orders is available to both the person who is getting spousal maintenance and the person who is making spousal maintenance payments. Under the Family Law Act 1975, the Court has the power to make changes to (including discharging or suspending) any existing spousal maintenance orders. Before the Court can do this, one of the following must be proven:

1. Since the orders were last made or varied, there has been a change in circumstances of the person who is receiving the spousal maintenance or the person paying the spousal maintenance, or
2. The cost of living has changed to the point where a modification of spousal maintenance orders is justified; or
3. In circumstances where the maintenance orders were made by consent, and the amount was not ‘proper or adequate’; or
4. There were ‘material facts’ not disclosed to the Court that made or varied the spousal maintenance orders or the ‘material evidence’ provided to the Court was false.
   

How Langham Lawyers can assist you

Please remember, there is no ‘one size fits all’ entitlement or payment amount. Each case is different, and each case requires the careful assessment from a family lawyer to identify whether any entitlement exists, and the type of payment likely to be awarded, if any. Our experienced family lawyers will be able to guide and advise you in all aspects of spousal maintenance, represent your best interests and maximise the success of your application within the parameters of your circumstances.

It is extremely important that you get advice on your potential claim as soon as possible due to the strict time limits that apply. If you do not act in time, your delay may disentitle you to your right to make a spousal maintenance application altogether.

Please call our family law team on (02) 8006 1596, for a no-obligation, free chat about your situation today.