SPOUSE MAINTENANCE
Are You Entitled to Receive, or Liable to Pay, Spousal Maintenance?
When a couple separates, the obligations of supporting the other spouse or partner do not end simply upon separation.
The Family Law Act provides that where a party cannot support themselves because of a physical or mental illness, as a result of having the care of a child born to the relationship under the age of 18 years, or for any other valid reason, they may be entitled to spousal maintenance. (See sections 72 – 75 of the Family Law Act.
It is of course equally important to establishing whether the other party has the financial capacity to maintain their former spouse. It will only be upon proving to the Court that both requirements are satisfied, that a Court will make an Order for spousal maintenance.
Married of Defacto Couples. Is there any Difference?
De facto couples are able to claim spousal maintenance from their former de facto partner, including a same-sex de facto couple.
What Happens in Court?
To prove your eligibility for spouse maintenance it will be helpful to obtain medical evidence from treating medical practitioners demonstrating why the claiming spouse cannot undertake paid employment by engaging in gainful employment. It is also very important that evidence also demonstrates that the spouse made efforts to obtain work. It may be that you are able to work, but as a result of either your medical condition, or the care of a child, or your limited earning capacity, you are unable to earn sufficient income to support yourself to a reasonable standard of living. In a word, you must show that you have exhausted all other options of obtaining financial support before bringing a spousal maintenance Application before the Court.
Once the ‘need’ for spouse maintenance and the capacity of their spouse to provide support, the question becomes of the amount sought to be paid, and whether this should be a lump sum or periodic (weekly, monthly) payment. The financial statement show a deficiency in their weekly income versus expenditure and that the responding spouse have an excess of income versus expenditure. It is also prudent to provide to the Court evidence of the claimed expenses, by way of receipts or credit card statements.
What if You Are on the Other Side?
For the person potentially liable to pay spousal maintenance, in responding to the Application, your task (and our task as your Solicitors) is to produce evidence to support the fact that either your spouse does not have a ‘need’ for maintenance; and/or that you have no capacity to pay spousal maintenance whether from income or financial resources available to you. You may also argue that the needs claimed by your former spouse or partner are not justified on the evidence or are not ‘reasonable’ in the circumstances.
However, in considering spouse maintenance claims, the Court will have regard to the standard of living the parties enjoyed prior to their separation.
If a party brings a spousal maintenance Application without sufficient grounds, or a party resists such an Application on insufficient grounds, the Court may have regard to an Application by the “winning” party for the “losing” party to pay their costs.
Is it possible to formalise a spousal maintenance agreement without going to court?
Yes, it is. A Binding Financial Agreement is the document that formalises the parties’ rights to receive periodic or lump-sum maintenance.
How Can We help You?
Our solicitors are fully knowledgeable of the potential pitfalls of the agreements and will be able to advise you on how to avoid them. Where appropriate we will work with accountants, financial and tax advisers to maximise the best possible outcome in your case.
How Can We Help You?
We specialize in the area of family law and divorce. We provide tailored service suitable in your particular circumstances:
- We advise as to your rights and obligations actual and potential.
- We assist you in selecting and negotiating the best terms of your prenuptial agreement (or other BFA) in your circumstances.
- We help you formalise the binding financial agreement and make it legally binding and enforceable.
We have assisted many couples to avoid court disputes and settled their issues by means of a properly done financial agreement.
