Maintenance – The Details
When there is a disparity between parties’ income and earning capacity, the Family Law Act allows this disparity to be remedied through the something called “maintenance.” Typically, maintenance is only available for a short-term period – about three to four years. The idea behind only allowing a party to receive maintenance for a relatively brief period of time is that the maintenance payments are intended to compensate the recipient while that person takes steps to enter the workforce or re-establish him or herself.
Much like the approach to property division, the objective of maintenance is to work towards a “clean-break” between the parties. Maintenance is intended to be a temporary crutch to help the financially disadvantaged party get back on their feet and subsequently be able to independently support themselves.
An action for maintenance can be brought before divorce, after divorce (but within 12 months), even if the parties’ marriage is void, and after the breakdown of a de facto relationship. The two major limitations with regard to orders for maintenance are that you must get leave or court (special permission) to seek maintenance after 12 months of the divorce being final, and you cannot seek maintenance if there is a binding financial agreement that addresses maintenance.
Who Is Entitled to Maintenance?
The Family Law Act provides for three circumstances that warrant an order for maintenance for formerly married couples. Said circumstances are:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any adequate reason,
Additionally, the court must consider relevant factors in making this determination. Those factors include: the ability of one party to pay, the standard of living of the spouses, the income capacity of the receiving spouse and whether it has been negatively impacted by the marriage, any child support being paid, and the health of the spouses.
There is a similar provision regarding maintenance for de facto couples. While there is no automatic right to maintenance, one party may be liable to pay maintenance towards the other party to the extent that the party can reasonably do so and only in circumstances where the other party is unable to support himself or herself adequately. The test used by the courts is not whether the applicant is in need of maintenance, but rather if that person is in a position to support themselves with their own resources.
Types of Maintenance Orders
An order awarding maintenance can be made several ways; by consent, after a contested hearing or to meet urgent needs. The Family Law Act gives courts the authority to issue an urgent maintenance order without a detailed enquiry, which would normally be required upon application for maintenance. These cases are rare, and only exist where one party is in immediate need of financial assistance. These orders differ from regular maintenance orders and only last for a limited duration.
Another type of maintenance order is referred to as a secured maintenance order. This occurs where the court makes a requirement that a maintenance order be secured by some type of collateral. These orders minimise the risk of default, and also make the enforcement of a maintenance order easier.
Maintenance can be in the form of periodic payments, a lump sum, or use of the car or home. The modern trend is for maintenance to be issued in a lump sum amount. This is preferable because the objective of awarding maintenance is to provide the financially disadvantaged party temporary help to reach a level of self-support. Often, a lump sum works towards this objective better than periodic payments.
Varying and Terminating Maintenance Orders
Maintenance orders differ from other family law orders in that they may only be varied on limited grounds. In order to have the amount of a maintenance order increased or decreased, the following circumstances must have occurred since the order was made or last varied:
- the circumstances of a person who was benefiting from the order have changed
- the circumstances of the person liable to pay have changed
- the cost of living has changed to justify a variation
- the amount is not proper or adequate and the original order was made by consent
- material facts were withheld from the court or deemed false, and those facts affected the order issued by the court
While the court enjoys slightly more discretion when varying other orders in family law proceedings, it is clear that they may only vary maintenance orders for the reasons laid out above.
Once a maintenance order requiring the payment of a lump sum has been executed, and the money paid, that order can no longer be varied. Such orders are deemed to have completed and at that point cannot be altered.
An order for maintenance will terminate upon the happening of various events. It will terminate at a time prescribed in the order, when the order is discharged, when one of the parties dies, or when a party remarries. However, it is important to keep in mind that once a maintenance order terminates, your rights to collect arrears do not also terminate. If you are owed maintenance, you may still collect it despite the fact that the order is no longer in affect.
