Hi, I’m Vanessa Mathews, and I want to give you some information today about spousal maintenance or support.

Many people don’t realize that the law requires one partner, either a husband or wife or de facto partner, where people are not legally married, to support each other financially. It’s not okay for one spouse to suddenly decide he or she is no longer giving any money to the other person. And even if you are divorced or the de facto relationship ends, the partner who was giving support must continue giving this financial help.

Now, the information I’m giving you applies to both married couples who divorce and de facto couples, after their relationship has ended. If you can come up with your own agreement, that’s the best way to proceed. But many people struggle to figure this one out. The law has rules and conditions for when financial support has to be given, and even how much, even after the relationship ends.

The court asks two basic questions. The first is whether or not one of the partners needs financial support or is this person able to support him or herself? But even if this person needs financial help, the judge will still ask a second question, which is, ‘Can the other partner pay me support?’ So how does a court decide if someone is entitled to support?

And how does the court decide how much money should be paid? The judge is going to consider a number of factors. He or she may look at the age of the person asking for help, and their ability to work. If one spouse or partner raised the children and is now, say, 50, with no work experience, the court might decide that he or she will have a harder time finding work at their age. So the judge might decide this person should get help. The court will also look at the person’s mental and physical health. Sometimes a person simply can’t work or cannot work in a job that will earn enough. If there are children, the court will consider who they live with, and give help accordingly.

The court also has to decide what standard of living is appropriate in each case. Now, there are a number of differences between de facto couples and couples who are legally married. There are a number of conditions that must be met for de facto couples in order for maintenance to be required. Also, de facto couples have up to two years after their relationship ends to request maintenance, while married couples have to make this request within 12 months after the divorce.

The aim of maintenance is to provide for the partner who needs it. So if a person remarries or starts a new de facto relationship, the ex-partner is no longer responsible. Their requirement to pay maintenance ends.

People often ask if they can get a tax deduction if they pay maintenance or if they have to pay income tax on maintenance they receive. The answer to both questions is no. There aren’t any tax implications for either person regarding maintenance.

I’ve tried give you some of the basics here. There are a lot of conditions and rules on maintenance, so I strongly recommend you seek advice from a lawyer specializing in family law. I’m Vanessa Mathews, for Byron Bay Family Law & Mediation Specialists.

Maintenance – The Basics

Maintenance is available to those who were married, and also those who were part of a de facto couple. While there is no automatic right to maintenance, the court may choose to issue an order for maintenance if the facts indicate that it is proper. When faced with whether to issue an order for maintenance, the court will consider a myriad of factors, such as 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.

When an order for maintenance is issued, it is intended to be temporary. The ultimate objective of maintenance is to help the financially disadvantaged party to reach a point of self-support. Most maintenance orders do not last more than three or four years, as the court ultimately wants all parties to reach a point of financial independence so the relationship can be finalised.

If certain specific circumstances have arisen since the order has been issued, the order may be varied. The court may only take this action, however, if one of the circumstances proscribed in the Family Law Act has occurred. An example of when an order for maintenance may be varied is where the cost of living has changed to justify a variation.

Orders for maintenance will terminate upon the occurrence of an event, for instance if either party dies or remarries. However, termination of an order does not affect your right to collect an arrearage.

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.

Partners in a same sex couples can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

One difference for same sex couple maintenance order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the order set aside.

De facto partners can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

One difference for a de facto maintenance Order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the Order set aside.

De facto couples can make their own financial arrangements, like any other legally married couple in Australia, or they can turn to the courts to receive a court order. In order to turn to the courts, the de facto couple must meet one of the following conditions:

1. The relationship existed for at least two years OR
2. The couple has a child together OR
3. One person made significant financial or nonfinancial contributions to the relationship and would be at a disadvantage if no order was granted OR
4. The relationship was registered

There is no automatic right to receive or a duty to pay spousal maintenance. In certain circumstances, separating couples can have an obligation to provide ongoing maintenance for their former partner. The Family Law Act provides that one party is liable to maintain the other party to the extent that party can reasonably do so and only in circumstances where the other party is unable to support him/herself adequately. Spousal maintenance is different to child support.

The decision to order spousal maintenance and how much you or your former partner should receive is based on a range of factors. The court is required under the Family Law Act to take the following factors (amongst others) into account:

• the ability of the other spouse to pay,
• the standard of living of the spouses,
• the income capacity of the spouse claiming maintenance and whether this has been negatively impacted by the marriage,
• any child support that is being paid and
• the health of the spouses.

Even if one party cannot adequately support him/herself the other party is only liable to support that party so far as they are reasonably able to do so.

The courts also have an obligation requiring them to ensure that any Orders made finalize as far as practical the financial relationship between the parties. This means that where a spousal maintenance order applies, the tendency is for the order to only apply over a short period of time. Certain events will also bring an obligation to pay spousal maintenance to an end. For more information, see here.

Where the property settlement is not yet finalized, an interim spousal maintenance order be made in response to an urgent application.

De facto partners (and same sex partners) can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

Urgent applications and Interim Orders for spousal maintenance

Spousal maintenance is usually considered as part of an overall settlement of financial matters, although, the Court does have the power to make Urgent and Interim Orders for spousal maintenance until a final trial is reached.

How long do spousal maintenance Orders apply?

A spousal maintenance order will automatically end if the party receiving maintenance dies or marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the order set aside.

The lawyers at Byron Bay Family Law & Mediation Specialists Melbourne have extensive experience negotiating property settlements generally. Specifically, we can advise on whether spousal maintenance is likely to be a relevant consideration for your situation. We can also advise on the merits of negotiating for or applying to the court for spousal maintenance.

Byron Bay Family Law is an Australian law firm. Please contact us on 1300 635 529 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

Spousal, de facto or same sex couple periodic maintenance may be paid when one party has the financial capacity to pay and when the other party is unable to financially support himself or herself adequately.

In determining whether or not periodic maintenance is paid, each party’s financial income and commitments are assessed.

There is a competing obligation upon the courts to ensure that, as far as practicable, any orders made finally determine the financial relationships between the parties. As a result, there is a tendency for periodic maintenance orders to be for a shorter duration.