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Maintenance

 

Married Couples

 

If a party to a marriage is unable to financially support himself or herself adequately after separation, that party may be entitled to receive spousal maintenance.

The amount of spousal maintenance depends in the first instance on the needs of the person making the application and the financial capacity of his or her spouse to meet that need. In assessing needs and capacity the Court ignores any social security allowance or pension that is being paid to the person applying for spousal maintenance.

The party making an application proves that he or she has a need for spousal maintenance by establishing one of the following:

they have the care and control of a child of the marriage who is under 18 years of age;
their age or physical or mental incapacity impedes their ability to work; and
any other adequate reason.

In considering a spousal maintenance application, the Court takes into account such matters as the age of the parties, their health, their obligation to support any other person and their standard of living before separation.

Normally spousal maintenance claims are dealt with at the time of property settlement. A party can however make a spousal maintenance application on an urgent, interim or final basis separately from a property settlement application.

Spousal maintenance orders are usually made for a limited period, however, the Court will take into account the age or disability of a party in considering the timeframe for the order.

Generally the Court expects both parties to make reasonable efforts to get paid work if they can. However, the Family Court accepts the need for a party to care for children, especially those not yet at school. The Court will usually also allow a spouse who has not been in employment to receive spousal maintenance while they find work or re-train

 

De Facto Couples

 

De Facto Couples that Separate after 1 March 2009

As of 1 March 2009, maintenance matters for de facto couples in all states and territories, except South Australia and Western Australia, will be dealt with under the Family Law Act 1975. This means that de facto couples now largely have the same maintenance rights and remedies enjoyed by married couples and that any disputes will be dealt with by the Family Law Courts. De facto couples include same sex couples.

If a party to a de facto relationship is unable to financially support himself or herself adequately after separation, that party may be entitled to receive maintenance.

In considering a maintenance application, the Court takes into account such matters as the age of the parties, their health, their obligation to support any other person and their standard of living before separation.

Normally maintenance claims are dealt with at the time of property settlement. A party can however make a maintenance application on an urgent, interim or final basis separately from a property settlement application.

Maintenance orders are usually made for a limited period, however the Court will take into account the age or disability of a party in considering the timeframe for the order.

De Facto Couples that Separated before 1 March 2009

De facto couples that separated before 1 March 2009 will not be able to deal with their matters under the Family Law Act 1975 unless both parties agree that this should be the case. In the absence of agreement, the Property (Relationships) Act 1984 will deal with financial matters. Under the Property (Relationships) Act 1984, a party to a de facto relationship can apply for maintenance in limited circumstances and for limited periods where the person is unable to support themselves adequately by reason of:

having the care and control of a child (under 12 years old) of the parties; and/or
that person’s earning capacity has been adversely affected by the circumstances of the relationship and the maintenance would increase the party’s earning capacity and is otherwise reasonable.
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