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Have you heeded the warning? Maintenance is payable to ex partners

Ed Clark

In a previous blog we indicated that the Federal Government had decided to treat separating couples in the same way whether they were married or not – proof has no come to pass. The Federal Government isn’t interested in the fact that you chose to not marry. Married; not married, all the same provided you lived together for 2 years or have a child of the relationship.

And so it has come to pass. Not only can claims be made to adjust interests in property and superannuation, but also maintenance can be claimed from an ex ‘never’ married partner from the other.

In Jonas V May (5 July 2010) His Honour Mr Justice Cronin of the Family Court ordered the male partner to pay his ex female partner $400 per week maintenance.

Section 90SF of the Family Law Act directs the Court to apply the principle that a party to a defacto relationship must maintain the other party to the defacto relationship to the extent that the first party is reasonably able, if the second party is unable to support him or herself.

His Honour found that Ms May was 51 years of age and that her only income post the end of the relationship was Centrelink payments. He found that she was unable to support herself by reason of her age or physical incapacity as she had not worked for many years having taken on the agreed responsibility of a family. He said that at an interim hearing that it was unreasonable to expect significant alteration to her former way of life.

His Honour then turned to whether Mr Jonas had the financial capacity to support Ms May. He determined that Mr. Jonas had not sufficient income, he too being in receipt of Centrelink payments but added “maintenance is just not dependant upon or payable because of, income”.

His Honour found that Mr Jonas’s property and financial resources were such that he has capacity to pay maintenance.

Through his lawyer , Mr Jonas argued that if he were ordered to pay maintenance this would cause him to default on his mortgage. To this argument his Honour found that the payment of the mortgage must give way to the obligation to pay maintenance, even if this triggered a default and a subsequent loss on resale of the property. And so His Honour concluded Mr Jonas “pay to Ms May the sum of her basic expenses each week of $400”.

If your partner and you want to avoid Court proceedings – the emotional trauma, control the outcome yourselves, the cost of litigation – you can, but only if, you enter into a binding cohabitation agreement. Once your partner is an ex partner it is too late!