Spousal Maintenance Lawyers

What is Spousal Maintenance?

Maintenance of a spouse or a de facto partner may be considered by the Court as part of property settlement matters, in addition to child support assessment.

However, in some circumstances Spousal Maintenance Orders may be made when there is a substantial difference between the parties’ incomes at the date of separation.

The Family Court of Australia and the Federal Circuit Court of Australia hear two types of applications for spousal maintenance:

  • De facto partner maintenance

This provides financial support to a former de facto partner where one party is unable to adequately financially support themselves.

  • Spouse maintenance

This provides financial support to a party of a marriage that has broken down where one party is unable to adequately financially support themselves.

Spousal maintenance is usually paid only for a limited period of time until the applicant party is in a position where they can financially support themselves. However, in exceptional circumstances Maintenance Orders may be made that require payments to be made on a permanent basis.

How does the Court calculate spousal maintenance?

Under the Family Law Act 1975, both parties have an equal duty to financially support and maintain the other party in circumstances where they can – and this continues after separation and divorce. The degree of maintenance is dependent on what the other party can afford.

The Court has the power to make a separate Order for one party’s maintenance. If one of the parties seeks a Spousal Maintenance Order, the Court will consider:

  • if the party seeking a Spousal Maintenance Order ( the “receiving party”) is unable to support  himself or herself from their income or capital to a standard of living that is in all the circumstances reasonable
  • if the answer to the above question is “no”, whether the other party (the “paying party”) has the capacity to meet and contribute to some or all of the spousal maintenance sought for a period of time.

The Court can Order that maintenance is paid either on an interim or final basis.

What other factors does the Court consider when making a decision about spousal maintenance?

When the Court is making a decision about Maintenance Orders it considers what the applicant’s needs of support are and what the respondent’s capacity to meet those needs are.

The Court also takes into account:

  • the age and health of you and your former spouse or de facto partner
  • the income, expenses, property and financial resources of you both
  • you and your former spouse or de facto partner’s capacity to work (and whether there are any restrictions on working full-time hours)
  • what the suitable standard of living is for both of you
  • whether the marriage or de facto relationship has affected your ability to earn an income (or your former spouse or de facto partner’s)
  • whether there are any children of the relationship (or any other relationship that either of you care for or maintain) who are under the age of 18 years, or over 18 years but disabled, that live with either of you.

The Court may also take into consideration any other factor it deems relevant to the matter.

Methods of resolving your spousal maintenance matters

Negotiation

Negotiations about property settlement matters and spousal maintenance matters can happen between you and your former spouse or de facto partner directly or through your solicitors. Negotiations can be done in writing, verbally or, where appropriate, in person.

If you are having trouble reaching an agreement in relation to parenting matters, we recommend you get independent legal advice to assist in your negotiations. It is better for all involved to reach an agreement rather than commence Court proceedings – especially if there are children involved.

For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003.

Mediation

Mediation is a well-established and popular dispute resolution process when resolving parenting matters or spousal maintenance matters.

This process involves face-to-face discussions between you and your former spouse or de facto partner, usually with your family lawyers present. A jointly appointed mediator is present, whose role is to assist the parties to find common ground from which a lasting agreement can be constructed. 

The mediator is usually a senior member of the profession, who may be a former Judge, barrister, experienced solicitor, social worker or psychologist.

The mediation process is most successful when:

  • the parties agree or have organised valuations of any property in dispute
  • ongoing expenses and needs of the parties have been addressed thoroughly in advance
  • both parties are prepared to make sensible compromises to resolve the matter.

In most circumstances, the cost of the mediator’s fees are equally shared between you and your former spouse or de facto partner.

Arbitration

Arbitration is a confidential dispute resolution process that assists parties to resolve property settlement matters and spousal maintenance matters. This process does not deal with parenting matters.

Arbitration is considered to be a dispute resolution process where there is a neutral third party, the Arbitrator, who meets with you and your former spouse or de facto partner  and considers all of the evidence and arguments in dispute. Your family lawyers and, if necessary, Legal Counsel are also usually present.

The Arbitrator, who is usually a senior barrister or a former Judge, will make an informed decision to resolve the dispute and that decision will then be legally binding with the Court.

The arbitration process is generally more time and cost-effective than commencing proceedings or going to Trial. The process is also more flexible and can be run to accommodate any other necessary requirements of either you or your former spouse or de facto partner.

Collaborative process

The collaborative process is commonly referred to as the “respectful divorce process”. It is a very different form of dispute resolution process.

Collaboration requires you and your former spouse or de facto partner to make a commitment to not commence (or threaten to commence) Court proceedings for your parenting matters. Instead, you both, with your respective solicitors, have face-to-face meetings to reach an agreement. This occurs instead of the normal negotiations in writing between parties through their solicitors. The “round table” discussions also include, where appropriate, accountants, financial planners and counsellors. This allows you to reach an agreement and compromises that are mutually acceptable without attending Court.

Once an agreement has been reached, your solicitors will assist you in formalising the agreement and lodging it with the Court.

We have reached a spousal maintenance agreement: How do we formalise it?

If an agreement has been reached for spousal maintenance between you and your former spouse or de facto partner, the agreement can be formalised by:

  • Informal agreement
  • Consent Orders, which are reviewed and approved by the Court
  • Binding Financial Agreement, which requires both parties to have legal representation
  • finalising property settlement matters by Consent Orders and spousal maintenance by way of Binding Financial Agreement.

H3: Informal agreement reached

You are not required to have a formal agreement or go to Court when dividing property between you and your former spouse or de facto partner.

However, the agreement will not be legally binding. This means that if either you or your former spouse or de facto partner fail to follow the terms of the agreement, there is no way to enforce those terms. Therefore, you may not receive spousal maintenance which has been agreed to or that you are entitled to receive.

H3: Consent Orders

Consent Orders can deal with any financial matters, including spousal maintenance, the splitting of superannuation and the transfer or sale of any property.

You can put the terms of your agreement into Consent Orders by filing the following documents in accordance with the legislative requirements of the Family Law Act 1975:

  1. Application for Consent Orders

This sets out details for each party (and the children under 18 years of age, if any), the assets, liabilities and superannuation entitlements of each party, and the agreement you are seeking.

  1. Minutes of Orders

This details the agreement reached for the Court’s approval.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

The Registrar will review the terms of the agreement and, if considered to be fair to both parties in the circumstances, will make the Orders binding. The parties do not need to attend Court, however both parties will be bound by the terms of the agreement and neither party will be able to make a future claim on the property.

For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003.

Time limitations of Consent Orders

An application for Consent Orders for property settlement or spousal maintenance must be made within:

  • one year from the date of divorce for married couples
  • two years from the date of separation for de facto couples. 

If an agreement cannot be reached, you can make an application in the Court to commence proceedings in either the Federal Circuit Court of Australia or, for more complex matters, the Family Court of Australia.

There are certain circumstances when a Court may cancel or change the Consent Orders.

For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003.

H3: Binding Financial Agreement

The terms of your spousal maintenance agreement can be put into a Binding Financial Agreement, which is also governed by the Family Law Act 1975.

Binding Financial Agreements are not filed in the Court and there are no requirements for a fair division of the net asset pool.

Financial Agreements for spousal maintenance matters can be entered into during the following periods:

  • before entering into a marriage or a de facto relationship (sometimes called a prenuptial agreement, though the legal term is financial agreement)
  • during a marriage or a de facto relationship
  • after ending a marriage or a de facto relationship.

Both parties must have legal representation before signing a Binding Financial Agreement and the document must be drafted to comply with certain requirements in order to be legally binding.

Spousal maintenance matters can also be dealt with in a financial agreement on its own (including with property settlement matters made by Consent Orders) or with an agreement for property settlement matters.

It is important to seek independent legal advice about your own circumstances prior to entering into any agreement, as family law matters can be more complex than they seem.

If you’re ready to get professional family law advice and help, contact the family lawyers at Ivy Law Group on 02 9262 4003.

 

Time limitations of Binding Financial Agreements

A Binding Financial Agreement can be entered into before, during or after a marriage or de facto relationship. If made after marriage, the Binding Financial Agreement must be made within 12 months of an order of divorce or within two years after the date of separation of a de facto relationship.

How can a Binding Financial Agreement be changed?

The only way that a Binding Financial Agreement can be set aside or changed by entering into:

  • a subsequent Binding Financial Agreement, which includes a clause to terminate the current agreement, or
  • a written agreement, known as a Termination Agreement, which terminates the earlier agreement.

We can’t reach a spousal maintenance agreement: What happens next?

Making an application for spousal maintenance in Court

You can make an application to commence Court proceedings for spousal maintenance when you are seeking property settlement matters. Alternatively, you can make an application for only spousal maintenance orders in circumstances where:

  • Consent Orders or Court Orders have been made for property settlement matters but no Orders were made for spousal maintenance and one party is in need for such maintenance (provided the application is within time limitations)
  • you and your former spouse or de facto partner have entered into a financial agreement or an informal agreement for property settlement matters and there is a need of one party for maintenance if they are unable to meet their reasonable living expenses (provided the application is within time limitations).

When making an application to the Court to commence proceedings for spousal maintenance you must file the following documents with the Court:

  1. Initiating Application

This sets out the details of the relationship, and the final Orders you are seeking in relation to the division of the net asset pool and spouse maintenance payments. You can also seek interim Orders, such as attending family law mediation, attaining joint valuations, payment of spouse maintenance for a period of time, selling a property or any other order concerning something that will occur before final Orders are made.

  1. Financial Statement

This details the Applicant’s financial position (income, expenses, assets, liabilities and superannuation entitlements) and the known asset pool and shows if you have a need to claim spousal maintenance.

  1. Affidavit

This sets out the Applicant’s written evidence and reasons why the Court should make the orders you are seeking. You will need to show that you have a need for maintenance as you are unable to meet your reasonable living expenses, and that your former partner or de facto spouse has the capacity to meet those expenses.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

You will need to serve the documents on the other party (the Respondent) once you have commenced proceedings. This can be done by hand, post, email, facsimile or other electronic communication or on the solicitors acting for the Respondent, if they accept service.

You can commence proceedings with or without a solicitor. However, given the complexity of family law matters, we recommend that you obtain legal advice before commencing proceedings so that you can understand how the Court process works and get advice about what range of outcomes you would expect in your circumstances if your matter was to be decided by the Court.

You can also find tips on how to write an affidavit or call us on 02 9262 4003 to obtain advice tailored to your circumstances.

Response to application for spousal maintenance proceedings in Court

The Respondent will need to file the following Court documents in response:

  1. Response to Initiating Application

This is a response to the issues in dispute raised in the Applicant’s initiating application and provides alternative evidence, if necessary, to support the Respondent’s case.

  1. Financial Statement

This details the Respondent’s financial position (income, expenses, assets, liabilities and superannuation entitlements) and the known asset pool, if possible, and shows if they have a need to claim spousal maintenance.

  1. Affidavit

This sets out the Applicant’s written evidence and reasons why the Court should make the orders you are seeking. Filing fee, for Final Orders only, which may be reduced if you have a Concession card.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

We recommend you seek legal advice if you wish to commence property settlement matters or respond to an Initiating Application.

For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003.

Types of spousal maintenance payments

Spousal maintenance payments can be ordered to be paid by the “paying party” to the “receiving party” on either a periodic or ongoing basis.

Periodic spousal maintenance payments

Orders for periodic spousal maintenance can be made by the Court. This means that if the Court is satisfied that the “receiving party” has a need for maintenance and the “paying party” has the capacity, then Orders can be made for spousal maintenance payments to be made periodically.

In most circumstances, periodic spousal maintenance orders are for a certain period of time to allow for the “receiving party” to be able to meet their everyday reasonable living expenses.

It is only in rare circumstances that periodic spousal maintenance payments will be paid on an ongoing basis. Circumstances where the “receiving party” is unable to meet their everyday living expenses include where they are unable to work due to a mental or physical disability or having the primary care of the children of the marriage or de facto relationship.

Ultimately, it is up to the discretion of the Court to consider the circumstances of each matter when making an order for spousal maintenance on a periodic basis, whether for a set period or on an ongoing basis.

Lump sum spousal maintenance payments

Lump sum spousal maintenance payments can be ordered by the Court to be paid in relation to both married and de facto couples.

A lump spousal maintenance payment may be made when the “paying party” of the marriage or de facto relationship is unable to make the payments from their income to the “receiving party” on a periodic or ongoing basis.

The Court will always consider the circumstances of each matter when making spousal maintenance Orders. If the Court finds that the “paying party” is deliberately putting themselves into circumstances to avoid having the capacity to meet the expenses of the “receiving party” then the Court will consider the nature and value of the net asset pool and will make an order in the favour of the “receiving party” by way of a lump sum payment.

It is up to the “receiving party” to make sure the lump sum spousal maintenance payment is put towards their reasonable living expenses. If the funds are wasted by inappropriate expenditure, further spousal maintenance payments will not be considered by the Court.

Interim spousal maintenance payments

Orders for interim spousal maintenance can be made by the Court in relation to both married and de facto couples.

It is common for spousal maintenance payments to be made on an interim basis when one party has a need for maintenance directly after the breakdown of their marriage or de facto relationship. For this Order to be made by the Court, proceedings must have commenced and there must be evidence before the Court (through an affidavit) of both parties’ financial position and any relevant information relating to either:

  • the need of the “receiving party” by giving evidence that they cannot meet their reasonable living expenses
  • the capacity of the “paying party” to meet the reasonable living expenses of the “receiving party”.

If an Order for interim spousal maintenance payments is made, it is only temporary until final Orders have been made by the Court or if resolved by consent orders on a final basis. This can also be done when making final property settlement orders.

It is important to know that parties may bring an application in circumstances where their case is pending final resolution only if new issues arise in relation to interim spousal maintenance payments pending the outcome of the final orders.

Urgent spousal maintenance

Orders for urgent spousal maintenance can be made by application to the Court. Urgent spousal maintenance can be made by periodic payments or a lump sum payment.

Urgent spousal maintenance applications are made in circumstances where the “receiving party” is in immediate need for financial assistance. This differs from an interim spousal maintenance application as there is no need (or time) to provide the Court with evidence of both parties.

The case of Williamson & Williamson (1978) FLC 90-505 made it clear that section 77 Family Law Act 1975 enables a Court to make urgent spousal maintenance orders on a pragmatic basis, rather than hearing the application upon merit to relieve the “receiving party” of their pressing and present need for spousal maintenance.

Therefore, when making an application for urgent spousal maintenance orders with the Court, you will not have to provide the in-depth evidence that you would for a normal interim application due to the urgent need of support.

When do spousal maintenance payments end?

Spousal maintenance payments will usually be determined for a specific period of time, whether in a financial agreement or by Court order on an interim basis. It is rare for spousal maintenance payments to be paid indefinitely.

Additionally, if a Court Order has been made for spousal maintenance payments, the payments will end if either party to the Orders dies or remarries or re-partners (unless in special circumstances where the Court uses its discretion to make an order that spousal maintenance payments continue).

If you enter into a new marriage or de facto relationship you must inform the person paying the spousal maintenance payments to you as soon as practicable. Otherwise, you may be liable to repay the spousal maintenance payments from the date of the commencement of the new marriage or de facto relationship.

Effect of negative contributions or waste arguments on spousal maintenance

Spousal maintenance is usually dealt with when the Court considers the “future factor” needs.

In most cases, the contributions made by each spouse or de facto partner will result in an increase in the value of the property. However, in some circumstances, the value of the property may decrease due to the actions or inactions of one or both of the parties. This is referred to as “waste” in relation to assets or “negative contributions” in relation to serious family violence.

Section 75(2)(o) of the Family Law Act 1975 states that a Court can take into account any other factor that it regards as relevant to the division of property, including “waste” and “negative contributions”.

Some examples of circumstances that amounted to negative contributions or waste or include:

  • when serious family violence has impacted the victim so much that their contributions were made more difficult to complete or they were unable to make substantial contributions (negative contributions)
  • where one party’s actions (for example, gambling, extravagant discretionary spending or poor business or financial decisions) has resulted in a loss to the net asset pool, affecting both parties (waste).

If you want to run a waste or negative contributions argument either in Court or during negotiations, we recommend you obtain legal advice as it is a complex area of family and relationship law.

If you’re ready to get professional family law advice, contact our family law firm, Ivy Law Group, on 02 9262 4003 to arrange a free, no-obligation initial consultation.

Even though the Family Law Act 1975 does not explicitly state that serious family violence can result in a negative contribution, the Court has discretionary power to make any order that it considers appropriate when making an adjustment of interests. In case law, Courts have determined that serious family violence can result in a negative contribution.

One example, from a family law matter heard in the Federal Circuit Court of Australia, involved a husband who had “wasted” all of the net sale proceeds of the parties’ former matrimonial home on gambling, resulting in periodic payment of spousal maintenance to the wife.

Time limitations for spouse maintenance

An application for spousal maintenance must be made within:

  • one year from the date the divorce order becomes final
  • two years from the date of separation for a de facto relationship.

Otherwise, you will need to apply to the Court for permission to commence proceedings out of time explaining why you failed to commence the proceedings and showing that failure for the Court to make an Order would cause you hardship.

FAQs about marriage

Alimony is the term used in family law matters in the United States of America. The equivalent term, in Australia, is spouse maintenance.

Spouse maintenance is financial support paid by a party to a marriage to their former spouse for a limited period of time so that they can support themselves adequately.

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