The Family Law Act 1975 (Cth) (FLA) provides that a former spouse/partner is liable to financially support the other former partner following the breakdown of a de facto relationship or marriage where they cannot afford to support themselves in certain circumstances. These circumstances include such situations as where a party has care of a child, where a party is unable to afford a reasonable standard of living and where a party is unable to work or obtain adequate work.
For example, in the circumstance where a Wife earns a significant income and the Husband is unable to work, or find work, the Wife may be ordered to pay spousal maintenance to the Husband. When determining whether an order for spousal maintenance is appropriate the court will also take into account the other former partner’s capacity to fund the financial support.
Urgent Spousal Maintenance
Importantly, the Family Law Act provides for urgent spousal maintenance to be paid to parties in cases where the court considers the party is in need of “immediate” financial assistance. For example, in the context of a sudden loss of income (during the COVID-19 pandemic for example), whereby a party has lost their job or is subject to reduced working hours and is in need of immediate assistance, this would likely be considered by the court as an appropriate circumstance to make an order requiring payment of urgent spousal maintenance.
Non-Urgent Spousal Maintenance
The Family Law Act also provides for spousal maintenance to be paid in non-urgent circumstances. This usually applies where a former partner requires assistance until their final property settlement can be resolved. However, there is also the possibility of obtaining a spousal maintenance order on a final basis so that the order for spousal maintenance is ongoing until (and if at all) the order specifies the payments should stop.
Type of Spousal Maintenance payments – lump sum/instalment payments
An order for spousal maintenance can be made up of lump sum and or instalment payments. The court will consider your matter and make an order that is most suitable to the circumstances in your matter.
Considerations of the court when determining spousal maintenanceThe court considers a number of factors when determining an application for spousal maintenance. These factors include considering both of the parties incomes and access to resources, the parties ages, care of children, responsibilities to support others (for example, elderly/sick/disabled parents), the parties respective health and ensuring the parties maintain a reasonable standard of living. Significantly, the court is to disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit (Centrelink).
How to obtain an order for spousal maintenanceWithout the agreement of the other party to pay spousal maintenance, a party will need to make an application to the Federal Circuit Court of Australia or Family Court of Australia seeking that an order be made requiring payment of spousal maintenance. Unlike informal agreements, court orders are enforceable and there are penalties able to be imposed for breaching such orders. Accordingly, it is important that you obtain court orders to afford you the protection of ensuring your spousal maintenance payments are actually paid to you.
In order to commence proceedings in relation to spousal maintenance matters in the Federal Circuit Court of Australia the following documents are required to be filed:
1. Initiating Application (document which sets out the orders you are seeking the court to make); and
2. Financial Statement (document which provides the court with a summary of your current financial position); and
3. Affidavit (document which sets out the facts you will rely on in order to convince the court to make the orders you are seeking).
Bainbridge Legal has a team of family law solicitors who are able to assist you in effectively and efficiently draft these documents to have your matter put before the court as soon as is practicably possible. Should you be in need of spousal maintenance consider the contact our offices without delay to discuss how we can help you.