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Navigating the Maze of Spousal Maintenance

Family Law: 29 November 2023

Author: Jessica Geraghty - Our People

Understanding spousal maintenance when a party is unable to financially support themselves adequately can be a maze to navigate. There are a number of factors taken into consideration by the Court, with one crucial element being the future needs of the involved parties.

How to Access Spousal Maintenance

The Family Law Act 1975 (Cth) provides that a person is financially responsible for maintaining their ex-spouse or ex-partner, to the extent that the person is reasonably able to do so in certain circumstances.

Upon application to the Federal Circuit and Family Court of Australia (Family Court), parties can access spousal maintenance when a party is unable to support herself or himself adequately:

  1. By reason of having the care and control of a child of the marriage who is not yet 18 years of age;
  2. By reason of age or physical or mental incapacity is prevented from gaining employment; or
  3. For any other adequate reason.

Factors the Court must consider

One crucial aspect that the Family Court examines when deciding on the necessity of spousal maintenance is the future requirements of the involved parties. When looking at the future needs of parties, the Court is to have regard to a number of factors, including but not limited, to the following:

  1. The age and health of the party;
  2. Income, property, financial resources, and employment capacity of both parties;
  3. Care of a child of the relationship;
  4. Commitments of each party required to support themselves, children, or other dependents;
  5. Responsibilities of either party to support another individual, including new partners and stepchildren;
  6. Eligibility for a Pension, Allowance or Benefit
  7. A standard of living that Is reasonable under the circumstances.

How to Dispute Spousal Maintenance

Parties may seek spousal maintenance orders in their Initiating Court documents filed with the Family Court.

The High Court in the decision of Hall & Hall [2016] held that two pre-conditions must be met for spousal maintenance to be ordered in favour of a party. First, it must appear to the court that a party to the marriage “is in immediate need of financial assistance”. Second, it must be “not practicable in the circumstances to determine immediately what order, if any, should be made.”

A party can dispute their former partner’s application for spousal maintenance, however they must demonstrate that their ex-partner or ex-spouse is in fact able to support themselves adequately taking into account the above considerations and is able to enjoy a standard of living that is reasonable in the circumstances.

In the Family Court decision of Doracott & Doracott [2020] the Wife’s application for interim spousal maintenance was dismissed on the basis that she was held to able to support herself adequately, with the Husband in this case assuming responsibility for majority of their finances. In this case, the Wife had access to funds in the sum of $30,000 paid by the Husband into the joint account, with the sum of $20,000 applied to meet joint fixed expenses concerning their properties. In this case, the Wife also had received a number of inheritances exceeding the sum of $1.4 million.

If you find yourself in need of financial support from your ex-partner or seek to challenge spousal maintenance, please do not hesitate and contact Aitken Partners on 8600 6000, for appropriate advice today.

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