“Maintenance” refers to virtually any form of material provision enabling an adult or child to live above mere subsistence. Under s 80(1) of the Family Law Act, a court is empowered to make such orders as it considers proper for the provision of spousal maintenance. The kinds of maintenance orders that a court can make are set out in s 80 of the Family Law Act. They include:
- urgent orders;
- interim maintenance orders;
- orders for periodic payments;
- orders for lump sum payments
- transfers of property; or
- any other order that is necessary to do justice between the parties.
A person who seeks an order for maintenance must satisfy two requirements:
- They are unable to adequately support themselves; and
- the other party has the financial capacity to provide support
If these requirements are met, then the court is required to consider the factors set out in ss 74 and 75(2) of the Family Law Act. Section 74 is concerned with matters related to bankruptcy and insolvency. Section 75(2) sets out the factors that guide the court’s factual inquiry into the nature of the order it ought to make.
A party may apply for a maintenance order until twelve months from the date that either a Divorce Order or Decree of Nullity comes into effect. If a party fails to apply for a maintenance order within the time limit, then they must seek permission from the court to apply out of time. The court may allow a party to apply out of time if:
- either the applicant or a child would experience hardship if permission were not granted; or
- the party’s circumstances at the end of the time limit were such that they were unable to support themselves without an income tested pension, allowance or benefit
For de facto couples, an application for maintenance should be filed within two years from date of separation, unless the court grants permission to proceed out of time.
The Ability to Adequately Support Oneself
For the purpose of meeting the requirements for a maintenance order, “adequately” means a standard of living that is reasonable in the circumstances: In the Marriage of Nutting (1978) FLC 90-410. Accordingly, the meaning of “adequately” may vary from case to case. Moreover, it does not mean mere subsistence, nor does it require the applicant to have depleted all of their monetary and capital resources.
The inability to adequately support oneself must stem from:
- having the care of a child of the marriage;
- age or some physical or mental incapacity for employment; or
- any other adequate reason.
In determining whether a party can adequately support themselves, the court will have regard to their capacity to obtain employment: In the Marriage of Ashbury (1978) 33 FLR 173. It may also have regard to any relevant statistical data concerning the economic consequences of separation: Mitchell v Mitchell (1995) FLC 92-601. Blameworthy conduct, on the other hand, is not a relevant consideration: Soblusky v Soblusky (1976) FLC 90-124.
The Capacity to Support the Applicant
The considerations that guide the court in determining whether the respondent to a maintenance application is capable of providing support are generally the same as those that relate to assessing the applicant’s ability to adequately support themselves. Some of the more prominent considerations taken into account include:
- the duty to seek appropriate employment (e.g., not taking a lesser paying job to defeat a maintenance claim);
- the income and financial resources of any members of that person’s household; and
- the individual’s monetary, capital and financial resources
It should be noted that the applicant is not entitled by default to their pre-separation standard of living. This is the case even if respondent has the financial capacity to support the applicant so as to achieve that standard.
Spousal Maintenance Considerations
In Australia, courts must have regard to the spousal maintenance considerations set out in s 75(2) of the Family Law Act when hearing such applications. These considerations specify the factual matters that the court must take into account in determining what constitutes an appropriate maintenance order. Factors taken into consideration include:
- Age and health
- Spouse’s income, property, financial resources and capacity for employment
- The care and control of any children of the marriage who are under 18
Find out about these and other spousal maintenance considerations in detail.
Lump Sum Payment
In general, orders for periodic maintenance (e.g., weekly payments) are preferred over orders for lump sum maintenance. The purpose of this is to provide leeway where the parties’ circumstances change in a way that justifies varying the order. Nonetheless, there are circumstances where a court may be inclined to make orders for lump sum maintenance. These include:
- situations where it is unlikely that the party liable for paying maintenance will comply with an order for periodic maintenance;
- satisfying an immediate financial need of the recipient (e.g., purchasing a car so that the party in question may commute to work); or
- instances where it is possible to assess the recipient’s financial needs for a definite period.
When the amount of lump sum maintenance is calculated as the sum of periodic payments over a definite period, then it may be discounted. The purpose of this is to account for the financial advantage of the recipient having funds available in a more timely manner: In the Marriage of Vartikian (No.2)  FLC 91-587.
Transfer of property
Section 80(1)(ba) of the Family Law Act empowers courts to make orders for maintenance by way of transferring property from one party to the other. A maintenance order by way of transferring property does not, however, prevent any further orders for maintenance from being made.
Interim Spousal Maintenance
Interim spousal maintenance orders are orders that are made during the course of proceedings. They only remain in effect until the proceedings are determined on a final basis. The source of power under which courts may make interim maintenance orders is s 80(1)(h) of the Family Law Act.
Urgent Spousal Maintenance
Orders for urgent spousal maintenance may be awarded in circumstances where a party is in immediate need of maintenance and it is not possible for the court to hear all the relevant evidence. A court may order a party to pay maintenance to the other party until it is able to comprehensively assess the parties’ financial circumstances. The source of this power is contained in s77 of the Family Law Act.
Cessation of Maintenance Orders
Maintenance orders may cease under any of the following circumstances:
- the death of either party, if it is an order involves payments;
- the death of the recipient, if the order does not involve payments; or
- re-marriage of the recipient, subject to exceptional circumstances.
It is worth noting that an order for de facto financial maintenance does not cease merely because the recipient has entered into a new de facto relationship.
De Facto Maintenance
Before a party to a former de facto relationship can apply for maintenance, they must satisfy at least one of the following requirements set out in s 90SB of the Family Law Act:
- the parties were in a de facto relationship for a period, or multiple periods, amounting to at least 2 years;
- there is a child of the relationship; or
- the applicant has made a substantial contribution to the relationship such that failing to make a maintenance order would result in serious injustice.
All other requirements and considerations that apply to married couples who have either separated or divorced also apply to de facto couples.
The child support scheme was introduced to address the shortcomings of the system of child maintenance under the Family Law Act. Now there is an administrative system that handles both the assessment and collection of child support. The system is contained in the provisions of the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act.
Both parents and non-parent carers can apply for a child support assessment. The amount of child support payable is generally determined by reference to the capacity of the parents to financially support their children, the costs of children, and the level of care that each parent or non-parent carer provides.
There are a number of “terminating events” that will cause a person’s child support liability to cease. In relation to the child, those terminating events include:
- The child’s death;
- The child turning 18 years of age;
- The child marrying or entering into a de facto relationship;
- The child is neither present in Australia on the day that the application for the assessment is filed
- The child is not an Australian citizen on the day the application is filed; or
- The child is not ordinarily resident in Australia on the day that the application is filed.
- In relation to a person who is liable to pay child support, a terminating event occurs when;
- that person dies; or
- Apply to the Child Support Registrar for a change of assessment in special circumstances; or
- File an application in a court for a Departure Order.that person no longer lives in
There are circumstances where the formulas applied in calculating a person’s child support liability do not produce a just result. This generally occurs in circumstances where:
- a person subject to a child support assessment is income poor, but asset rich;
- the child has special needs;
- the cost of spending time with the child are high;
- the cost of childcare are high; or
- both parents expected that their children would attend private schools.
In such circumstances, it may appropriate to either a reciprocating jurisdiction and does not immediately move to Australia or a reciprocating jurisdiction.