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The law relating to Spousal Maintenance is generally not well known or understood by the general public and as a result, it is arguably under-utilised. Parties are usually aware that they have a right to a property settlement, and to apply for child support if there are children under the age of 18, but they are often unaware that they may be able to make a spousal maintenance claim against their spouse.
When Is Maintenance Payable?
Section 72 of the Family Law Act 1975 (“the Act”) provides that a party to marriage is liable to pay maintenance to the other party, to the extent that the first mentioned party is reasonably able to do so, if and only if the other party is unable to support himself or herself adequately whether:
Often the person entitled to make a claim is the party who has the primary care of the children of the marriage following a separation and, as a result of those caring responsibilities, is unable to earn enough to support him or herself. A party may also make a claim if he or she is unable to support him or herself because he or she is too old to obtain employment or because he or she cannot obtain employment due to health reasons. If there is any other “adequate reason” why a party cannot adequately support him or herself a claim can be made,however such claims can only be made if the other party is reasonably able to pay maintenance.
The Court’s Approach
The following approach is taken by the Court when assessing whether maintenance should be payable and, if so, the quantum of the maintenance:
When assessing whether an Order ought to be made and, if so, the type of Order that should be made, the Court must take into account matters set out in Section 75(2) of the Act which are as follows:
Types of Orders
Section 74 of the Act provides that the Court may make such Order as it considers proper for the provision of maintenance. A Court can therefore make a very wide range of Orders pursuant to this provision, for example:
How To Protect Yourself From A Claim
Parties to a marriage wishing to protect themselves from a claim can enter into a financial agreement known as a “Pre-Nuptial Agreement” that provides that neither party will make a claim for maintenance from the other party. Care needs to be taken in drafting agreements where a party is unable to support him or herself without an income tested pension, benefit or allowance.
These agreements can be set aside in certain circumstances, including where a change in material circumstances has arisen (being circumstances relating to the care, welfare or development of a child) and, as a result of the change, the child or the applicant who has caring responsibility for the child will suffer hardship.
Maintenance Where Parties Have Been in a De Facto Relationship
Section 90SE of the Act provides that, following a breakdown of a de facto relationship (after 1 March 2009) a Court may make such Orders that it considers proper for the maintenance of one of the parties to the de facto relationship. The maintenance Order can be made in relation to a de facto relationship only where:
Certain geographical requirements must also be met. A party can only apply for a maintenance Order up to two years after the end of the de facto relationship. In certain circumstances however, a Court may grant leave to a party to apply after that time, for example:
Section 90SF of the Act substantially replicates Section 72 of the Family Law Act 1975 in relation to the parties to a marriage, i.e. a party to a de facto relationship must maintain the other party only to the extent that the first mentioned party is able to do so and only if the second party is unable to support him or herself adequately:
Section 90SF of the Act sets out matters to be taken into account by a Court when assessing whether and to what extent maintenance should be payable. These matters virtually replicate the matters that a Court must take into account when assessing maintenance in relation to parties to a marriage as set out in Section 75(2) of the Act. The Court must, as in the case of married parties, disregard any entitlement to a means tested benefit in assessing whether and to what extent maintenance is payable.
Parties in domestic relationships who separated before 1 March 2009 can apply for maintenance under the Relationships Act 2008 (Vic). Section 51 of the Relationships Act provides that a Court may make a Maintenance Order if satisfied that the applicant is unable to support him or herself adequately because:
The court must take into account a number of different factors when assessing whether a maintenance Order should be made and the nature of that Order. There are unlikely to be many more Applications under the Relationships Act because this Act applies to relationships that ended before 1 March 2009 and parties can only make applications within 2 years of the end of the relationship (without seeking leave of the Court).
Parties to a marriage, de facto relationship or domestic relationship that has broken down should be aware that they may be able to make a claim for maintenance against the other party. Parties considering getting married or entering into a de facto relationship may wish to enter into a financial agreement providing that neither party will claim maintenance from the other.
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