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1 FAMILY LAW TOPIC FAMILY LAW TOPIC 7: 7: SPOUSAL MAINTENANCE SPOUSAL MAINTENANCE

1 FAMILY LAW TOPIC 7: SPOUSAL MAINTENANCE. 2 SPOUSAL MAINTENANCE Preliminary Matters Overlap between child maintenance and spousal maintenance - see Redman

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FAMILY LAW TOPIC FAMILY LAW TOPIC 7:7:

SPOUSAL SPOUSAL MAINTENANCEMAINTENANCE

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SPOUSAL MAINTENANCESPOUSAL MAINTENANCEPreliminary MattersPreliminary Matters

Overlap between child maintenance and Overlap between child maintenance and spousal maintenancespousal maintenance- see - see RedmanRedman [1987] FLC 91-805 [1987] FLC 91-805ecclesiastical courtsecclesiastical courtsdistinguishing alimony from maintenancedistinguishing alimony from maintenancestatutory reliefstatutory relief Family Law ActFamily Law Act 1975 1975 Property (Property (RelationshipsRelationships)) Act Act 1984 1984

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(1) (1) SPOUSAL MAINTENANCE SPOUSAL MAINTENANCE UNDER THE FAMILY LAW ACT UNDER THE FAMILY LAW ACT 19751975

Part VIII ssPart VIII ss 7711-90L-90L

(a)(a) Spousal Liability Spousal Liability

‘‘party to a marriage’: sparty to a marriage’: s 7171(conditional) right of support: s(conditional) right of support: s 7272payer spousepayer spouse: ‘reasonably able’ to support : ‘reasonably able’ to support payee spouse (payee spouse (ie ie has the means)has the means)payee spousepayee spouse: unable to support him/herself : unable to support him/herself adequatelyadequately (by reason of (a)-(c)] (by reason of (a)-(c)] [[ie ie has the need)has the need)

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(a)(a) Spousal Liability Spousal Liability

Three categories in sThree categories in s 72:72: care of childrencare of children age etc for gainful employmentage etc for gainful employment ‘‘any other adequate reason’any other adequate reason’

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(1) (1) SPOUSAL MAINTENANCE SPOUSAL MAINTENANCE UNDER THE FAMILY LAW ACT UNDER THE FAMILY LAW ACT 19751975

((bb)) Courts power to enforce liabilityCourts power to enforce liability

discretionary power: sdiscretionary power: s 7474

‘‘proper order’proper order’

Subject to examination of the so-called s Subject to examination of the so-called s 75(2) factors75(2) factors

also note s 80also note s 80

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(c)(c) Relevant Considerations Relevant Considerations

section 75(1) ‘shall’section 75(1) ‘shall’ssection 75(2) ‘matters’:ection 75(2) ‘matters’:a.a. age & healthage & healthb.b. income, property, financial resources, income, property, financial resources,

employment capacityemployment capacityc.c. care of childrencare of childrend.d. ‘commitments’‘commitments’e.e. responsibility to support 3rd partyresponsibility to support 3rd partyf.f. eligibility for pension, super etceligibility for pension, super etcg.g. reasonable standard of livingreasonable standard of livingh.h. education/training opportunityeducation/training opportunity

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ha. effect on debt recoveryha. effect on debt recovery j.j. extent applicant contributed to income etc extent applicant contributed to income etc

of the other partyof the other partyk.k. duration of marriageduration of marriagel.l. need to protect ‘role of parent’need to protect ‘role of parent’m.m. financial circumstances of partnerfinancial circumstances of partnern.n. terms of s 79 orderterms of s 79 orderna. Child support assessmentna. Child support assessmento.o. ‘any other fact or circumstance’‘any other fact or circumstance’p.p. terms of any binding financial agreementterms of any binding financial agreement

note snote s 75(3) disregard social security 75(3) disregard social security also note ealso note effect of sffect of s 75(2)(o)75(2)(o)

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(1) (1) SPOUSAL SPOUSAL MAINTENANCE UNDER THE MAINTENANCE UNDER THE FAMILY LAW ACT 1975FAMILY LAW ACT 1975(d)(d) Urgent OrdersUrgent Orders

Immediate need: s 77Immediate need: s 77

[e] Specification in Orders[e] Specification in Orders

specify maintenance component: s 77Aspecify maintenance component: s 77A

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(f)(f) General Powers of the CourtGeneral Powers of the Court

‘‘menumenu’’: s: s 80(1) - 80(1) - also also note ssnote ss 80(2)-(3)80(2)-(3)a.a. lump sumlump sumb.b. periodic sumperiodic sumba. Transfer propertyba. Transfer propertyc.c. secured sumsecured sumd.d. order execution of documentorder execution of documente.e. trusteestrusteesf.f. direct paymentsdirect paymentsh.h. permanent or fixed orderspermanent or fixed ordersi.i. Impose term and conditionsImpose term and conditionsj.j. make an order by consentmake an order by consentk.k. a justice ordera justice orderl.l. before or after a decreebefore or after a decree

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(g)(g) Cessation of Maintenance LiabilityCessation of Maintenance Liability

refer srefer s 8282two situationstwo situations deathdeath remarriage of beneficial spouseremarriage of beneficial spouse

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(h)(h) Modification of OrderModification of Order

refer srefer s 8383discharge, suspend, revive or varydischarge, suspend, revive or varychange of circumstanceschange of circumstancescost of living changecost of living changeconsent order not properconsent order not propermaterial fact(s) withheldmaterial fact(s) withheld

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(i)(i) Maintenance AgreementMaintenance Agreementhistorically voidhistorically voidright to sue: sright to sue: s 1 11919definition: sdefinition: s 4(1)4(1)‘‘s s 86 agreement86 agreement’’registered onlyregistered onlysee (old rule O 26 r 1)see (old rule O 26 r 1)

‘‘s s 87 agreement87 agreement’’approved by courtapproved by courtnote s 87Anote s 87Aalso note s 87(4A)also note s 87(4A)

****now see FLA Pt VIIIA financial agreementsnow see FLA Pt VIIIA financial agreements note s 90F(1A) re maintenance and need for note s 90F(1A) re maintenance and need for income-tested pensionincome-tested pension

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(2)(2) CHILD BEARING EXPENSES CHILD BEARING EXPENSES UNDER THE FAMILY LAW ACT UNDER THE FAMILY LAW ACT 19751975

(a)(a) Liability of father to contribute if not married Liability of father to contribute if not married to motherto motherPart VII Division 8 Subdiv BPart VII Division 8 Subdiv Breasonable expenses: sreasonable expenses: s 67B67B

(b)(b) Who may institute proceedingsWho may institute proceedingsbirth mother: sbirth mother: s 67F67F

(c)(c) Court’s power Court’s poweras it thinks ‘proper’: sas it thinks ‘proper’: s 67D67D

(d)(d) Other matters Other matterstime limits: stime limits: s 67G67Gurgent order: surgent order: s 67E67E

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(3)(3) MAINTENANCE UNDER THE MAINTENANCE UNDER THE PROPERTY (PROPERTY (RELATIONSHIPSRELATIONSHIPS)) ACT ACT 1984 (NSW)1984 (NSW)no common law rightsno common law rights

(a)(a) Jurisdictional requirementsJurisdictional requirements

definitiondefinitionss: : ssss 33-5-5

relevant courts: srelevant courts: s 9, 109, 10

Part III ‘hurdles’Part III ‘hurdles’ residence: sresidence: s 1515 two-year relationship: stwo-year relationship: s 1717 two-year time limit: stwo-year time limit: s 1818

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(b)(b) No general right to maintenanceNo general right to maintenance

prohibition: sprohibition: s 2626

(c)(c) Court’s power Court’s power

limited rights: slimited rights: s 2727

child care: schild care: s 27(1)(a)27(1)(a)

education/training (rehabilitative): seducation/training (rehabilitative): s 2 27(1)(b)7(1)(b)

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(d)(d) Relevant considerationsRelevant considerationsfive matters: sfive matters: s 27(2)27(2)a.a. income etcincome etcb.b. needs aneeds annd obligationsd obligationsc.c. responsibilitiesresponsibilitiesd.d. property orderproperty ordere.e. child maintenancechild maintenance

Interim maintenance: s 28Interim maintenance: s 28

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(e)(e) Duration and Cessation of an Order Duration and Cessation of an OrderEffect of marriage or new r’ship?Effect of marriage or new r’ship?- no application possible if applicant has re-- no application possible if applicant has re-partnered or married: s 29partnered or married: s 29- see generally ss 30-34:- see generally ss 30-34:child care maintenance ceases when child turns child care maintenance ceases when child turns 12 or payee ceases to be the carer: ss 30, 3312 or payee ceases to be the carer: ss 30, 33rehabilitative maintenance ceases 3 years after rehabilitative maintenance ceases 3 years after order OR 4 years after r’ship ends whichever is order OR 4 years after r’ship ends whichever is shorter: s 30shorter: s 30either order ceases on death or either party or either order ceases on death or either party or on marriage of payee: s 32on marriage of payee: s 32arrears not effected!arrears not effected!

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(f)(f) Modification of orderModification of orderrefer srefer s 3535

Final Note:Final Note: Reference of Reference of powers to C’wealthpowers to C’wealthFamily Law Amendment (De Facto Financial Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 Matters and Other Measures) Bill 2008 (Cth)(Cth)s 4AA definition + s 90SBs 4AA definition + s 90SB (2 year rule) (2 year rule)s 90SE maintenance power = FLA s 74s 90SE maintenance power = FLA s 74s 90SS general powers = FLA s 80s 90SS general powers = FLA s 80s 90SF(3) considerations = FLA s 75(2)s 90SF(3) considerations = FLA s 75(2)s 90SI modification = FLA s 83s 90SI modification = FLA s 83s 90SJ cessation (death and marriage?)s 90SJ cessation (death and marriage?)ss 90UA-UD financial agreements = FLA s ss 90UA-UD financial agreements = FLA s 90A-D90A-Ds 90UI maintenance and income-tested s 90UI maintenance and income-tested pensions = FLA 90F(1A)pensions = FLA 90F(1A)