The Family Law Act 1975 has provisions for the cessation and modification of spousal maintenance orders. This legislation primarily governs family law matters in Australia such as child custody, divorce, and spousal maintenance. A party provides spousal maintenance to their former spouse or de facto partner after separation or divorce.
Its primary purpose is to alleviate any financial disadvantage suffered by the recipient due to the end of the relationship. Spousal maintenance ensures that both parties can maintain a reasonable standard of living. This is the case especially if one partner cannot meet their financial needs independently. Read on to know more about provisions for cessation and modification of spousal maintenance.
Section 80: General Powers of Court
According to Section 80 of the Family Law Act, the court has certain general powers. Subsection (1) states that the court in exercising its powers may do any or all of the following:
- order payment of a lump sum, whether in one amount or instalments;
- order payment of a weekly, monthly, yearly or other periodic sum;
- order that a party make a transfer or settlement of property by way of maintenance for a party to a marriage;
- order that payment of any sum ordered to be paid be wholly/ partly secured in a manner the court directs;
- order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
- appoint or remove trustees;
- order that a party make payments direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
- make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
- impose terms and conditions;
- make an order by consent;
- make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
- subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
Other Points under Section 80
Subsection (2) states that the making of an order of a kind referred to in subsection (1)in relation to the maintenance of a party does not prevent a court from making a subsequent order.
Subsection (3) state the applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages. This is for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
Moreover, if a bankruptcy trustee is a party to a proceeding, the court may make an order directed to the bankrupt. If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order directed to the debtor subject to the agreement.
Section 81: Duty of Court to End Financial Relations
Section 81 of the cessation and modification of spousal maintenance outlines the duty of court to end financial relations. In proceedings under this specific Part of the legislation, the court has a duty to make orders that conclusively resolve the financial relationships between the parties to the marriage.
However, this duty does not apply to proceedings under section 78 or proceedings related to maintenance payments during the marriage. The court aims to find a resolution for financial matters and settle all financial aspects between the parties. Its objective is to provide conclusive orders that address and resolve the financial relationships between the parties involved.
Section 82: Cessation of Spousal Maintenance Orders
Section 82 of cessation and modification of spousal maintenance outlines spousal maintenance orders that cease to have effect in Australia. Here’s a breakdown of each subsection:
(1) This subsection states that if a party to a marriage who is receiving spousal maintenance passes away, the spousal maintenance order automatically ceases to have effect.
(2) Similarly, if the person who has obligation to make spousal maintenance payments passes away, the order also ceases to have effect. However, Subsection (3) below provides an exception.
(3) Subsection (2) does not apply to lodged orders before a specific date (the commencement of section 38 of the Family Law Amendment Act 1983). The order remains binding upon the deceased person’s legal representative. This is if an order made prior to that date states that it continues throughout the life of the person:
- For people who will benefit from it; or
- For a specific period that had not expired at the time of the payer’s death.
(4) According to Section 82, subsection 4 of cessation and modification of spousal maintenance if the party receiving spousal maintenance remarries, the spousal maintenance order ceases to have effect. However, the court has the authority to make an exception to this rule in special circumstances.
(6) When a party receiving spousal maintenance remarries, it is their responsibility to promptly inform the person who has to make the payments about the date of the remarriage.
(7) Any payments made after the remarriage event referred to in subsection (4) can be recovered by the payer through a court that has jurisdiction under the Family Law Act.
(8) The cessation of the spousal maintenance order does not affect the recovery of any arrears. These are past-due payments that were owed under the order at the time it ceased to have effect.
Section 83: Modification of Spousal Maintenance Orders
Section 83 of cessation and modification of spousal maintenance pertains to the modification of spousal maintenance orders in Australia. Here’s an explanation of the key points:
(1) The court has the authority to modify the order, subject to section 111AA. This is If there is an existing order regarding the maintenance of a party to a marriage, whether made by the court or registered from another court.
(1A) The court’s jurisdiction to modify the order can be exercised in various scenarios. This may include:
- Proceedings related to maintenance
- Applications by the bankruptcy trustee if a party is bankrupt; or
- Applications by the trustee of a personal insolvency agreement if a party is a debtor subject to such an agreement.
(2) The court can only make an order to increase or decrease the amount to be paid if the following conditions are met:
- Significant changes in the circumstances of the beneficiary or the person liable to make payments
- Changes in the cost of living
- The inadequacy of the agreed amount; or
- The withholding of material facts or false evidence.
(3) Subsection (2) does not prevent the court from modifying an order made before the commencement of the Act. This is true if it is for the purpose of giving effect to the relevant provisions.
(4) When considering the variation of an order based on changes in the cost of living, the court takes into account any changes in the Consumer Price Index published by the Australian Statistician.
Section 83 of Cessation and Modification of Spousal Maintenance Orders: Subsection 5-8
(5) The court cannot consider the variation of an order based on changes in the cost of living. This is true unless at least 12 months have passed since the order was made or last varied with regard to such changes.
(5A) In considering the adequacy of the amount ordered to be paid when the order was made by consent, the court takes into account:
- Any previous payments; or
- Transfers of property made by either party or the bankruptcy trustee to the other party or for their benefit.
(6) An order decreasing the periodic payment amount or discharging the order can be expressed as retrospective to a specific date determined by the court.
(6A) If an order decreasing the number of periodic payments is expressed as retrospective, any excess payments made since the specified date under the original order can be recovered through a court.
(6B) Similarly, if an order discharging the original order is expressed as retrospective, any payments made since the specified date can be recovered through a court.
(7) The court considers the provisions of sections 72 and 75 for the purposes of this section.
(8) The discharge of an order does not affect the recovery of any outstanding arrears owed under the order at the time of its discharge.
Seeking Legal Advice About Cessation and Modification of Spousal Maintenance
Spousal maintenance serves as a vital mechanism for providing financial support to individuals who require assistance after a marriage breakdown. This article has outlined the complexities of spousal maintenance in an informed and efficient manner.
Remember our family lawyers at our firm can protect your rights and ensure a fair outcome during the divorce procedure. Contact us today for more information about the cessation and modification of spousal maintenance.