Ex-spouses may wonder how spousal maintenance Family Law Act 1975 affects their financial status after divorce and de facto relationship separation. Spousal maintenance is a form of financial support that a person provides for their former de facto partner or spouse after a de facto relationship or marriage ends.
According to Section 71 of the Act, marriage includes void marriages where parties don’t have the status of husband and wife. It’s also important to note that spousal maintenance is separate from both property settlement and child support.
While all of these three involve money matters, all of them have different approaches. A lot of couples may have disputes when it comes to financially supporting each other. Hence, it’s important that couples read this article about the spousal maintenance Family Law Act.
Spousal Maintenance Family Law Act: Section 71A
Section 71A specifies that Part VIII of the FLA, which relates to points about property, spousal maintenance and maintenance agreement, does not apply to some matters that are included in a binding financial agreement.
Binding financial agreements set forth how to split the assets of a couple in the event that their relationship ends. It can also deal with spousal maintenance. According to 71A, Part VIII does not apply to some financial matters and financial resources that a binding financial agreement covers in the case of a separated or divorced couple.
Section 72: Rights of Spouse Receiving Maintenance
According to the spousal maintenance Family Law Act, some partners don’t have the capacity for independent financial support after divorce and separation. This could be because they cannot get appropriate gainful employment due to physical or mental incapacity or other obligations.
According to Section 72, the higher-earning partner is liable to maintain and provide financial support to the lower-earning partner if:
- There are children under 18 in their marriage that need care and control
- The lower-earning partner has physical or mental disabilities that prevent him/her from securing a job
- Any adequate reasons
Transferring vested bankruptcy property can satisfy a bankrupt spouse’s obligation to support the other spouse in full or in part. Vesting a property means that the trustee becomes the owner of the property.
Section 74: The Court’s Power in Spousal Maintenance Proceedings
According to Section 74, courts can make spousal maintenance orders with respect to the maintenance of a lower-earning partner. There may also be cases where either partner goes bankrupt during and after spousal maintenance proceedings. According to the spousal maintenance Family Law Act, a bankrupt person may petition the court for a modification of spousal support.
Courts can modify an order to aid the paying party with his/her paying capabilities. The same goes for payees where the courts can modify the order in order for payees to receive more money. However, either party must prove that there is a significant change in circumstance or some type of hardship.
This is if they experience financial difficulties after filing for bankruptcy. The bankrupt party will probably need to provide evidence of a significant change in circumstances or some type of hardship. Bankruptcy trustees can also apply to the court and join the parties in the spousal maintenance proceedings.
Section 75: Considerations for Spousal Maintenance Proceedings
So, what matters to consider during spousal maintenance proceedings? There are a lot of considerations when discussing spousal maintenance Family Law Act. Furthermore, courts are careful in reviewing these considerations. Here are the following considerations:
- Age and health of each party
- The financial capacity i.e. income, property, and financial resources of each party
- The physical and mental capacity of each party to secure a decent earning job
- If a party is caring for a child under 18 years old
- Commitments of each party necessary to support themselves
- Commitments of each party in supporting a child or another person
- The eligibility of each party for a pension, allowance, or benefit
- Where the parties have separated/divorced, but a reasonable standard of living exists
- The possibility and capacity of the lower-earning party to take courses or establish a business in order to earn adequate income
- The ability of the party’s creditor to recover the debt
- The lower-earning party’s contributions to the income, earning capacity, and financial resources to the higher-earning party
- The marriage duration and how it affected the earning capacity of the lower-earning party
- The need to protect a party that wants to continue his/her role as a parent
- Cohabiting with another person and their financial circumstances
- Each party’s property
- Any de facto partners of both parties
- Any vested bankruptcy property
- If either party provided or is providing child support to both present or future children
- Courts’s opinion on any facts or circumstances
- Any financial agreements
Section 77: Urgent Spousal Maintenance Cases
There may be instances where a lower-earning party may need immediate financial assistance after a marriage or de facto relationship ends. Hence, the courts may order urgent spousal maintenance payment, dismiss the proceedings, and consider reasonable payment methods. Spousal maintenance comes in a range of forms including periodic, lump sum payment, interim, and urgent.
Lump Sum Payment
A party may need to make either a one-time payment or recurring payments of spousal support. While lump sum maintenance is more appropriate in some situations, spousal maintenance is typically paid on a regular basis. Lump sum maintenance is acceptable when the :
- Paying party has a history of making irregular periodic payments
- Recipient has had trouble collecting the payments
- Recipient needs a lump sum to start over in a new place
The court can make an interim order for spousal maintenance when there is a need for maintenance before the parties’ dispute is resolved. Before deciding on interim maintenance, the Court holds an interim hearing and requires sufficient proof from both parties in the form of an affidavit and financial statement. An interim order will be in effect for the time frame specified by the court or until it is revoked by another court order.
If one party requires money right away or urgently, the court may award urgent spousal maintenance. According to the spousal maintenance Family Law Act, the court has the authority to compel immediate maintenance without conducting a thorough investigation into the parties’ financial situation.
When one can’t obtain an interim or final support order, urgent spousal maintenance is typically ordered for a brief period of time. Depending on what the court deems to be appropriate under the circumstances, urgent maintenance may be granted as a lump sum or as recurring payments.
Section 77A: Orders of Payments and Documents for Spousal Maintenance
Courts may make orders that require the higher-earning party to pay spousal maintenance through a lump sum, interim, or urgent payments to their former partner or de facto spouse. The court may also order the transfer or settlement of property to make provisions for spousal maintenance. They may also specify the portion of the payment or the value of the property’s portion.
Importance of Seeking Legal Advice
This spousal maintenance Family Law Act article highlights all the necessary rules, regulations, and considerations needed for spousal maintenance. Disputed spouses can review this article and decide how to approach their maintenance case.
JB Solicitors’ family lawyers continue to help our clients with their financial disagreements by providing legal advice. There are alternative dispute resolution methods that will not require the court’s involvement. With that being said, clients can avail our mediation and arbitration services in order to settle disputes amicably and fairly. Moreover, you can seek legal advice for more information on time limits for spousal maintenance application or when spousal maintenance ceases.
Contact a family lawyer today for matters regarding spousal maintenance after marriage or de facto relationship.