What is spousal maintenance? Are you

entitled to it?

August, 2015By Allysha-Jane Merrett, Family Lawyer

Legal DisclaimerThis presentation is offered for general information

purposes only. It does not constitute specific legal

advice or opinion. You should not act or rely upon

any of the information contained within this

seminar without seeking the advice of a qualified

solicitor who specialises in the particular area of

expertise and jurisdiction that you require.

Presentation OutlineIntroduction 4Establishing a right to spousal maintenance? 7When does a Court consider when making a decision? 11What are the time limits when applying for it? 14How long can you receive spousal maintenance? 15

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IntroductionOften when marriages or de facto relationships break down one party finds themselves unable to meet their financial needs.

In some cases, this may result in the party being entitled to spousal maintenance.

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IntroductionUnder the Family Law Act 1975 a person with capacity to pay, has a responsibility to financially assist their spouse or former partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

A party's obligation to pay spousal maintenance may be discharged by way of regular periodic payments or a lump sum payment.

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IntroductionSpousal maintenance is not child support.

Child support is paid for the benefit of the child or children.

Spousal maintenance is paid for the benefit of the spouse.

The Family Court can order a party to pay spousal maintenance in addition to child support.

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Establishing a right tospousal maintenanceTo be successful in an application for spousal maintenance it must be established by the Applicant that:

The Applicant is "unable to support herself or himself adequately"; and

The Respondent is "reasonably able" to pay.

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Establishing a right tospousal maintenanceSuccessful applications usually involve a disparity of income and/or earning capacities between the parties.

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Establishing a right tospousal maintenanceSome common situations where spousal maintenance has been granted by the Court include: one party has care of young children and is

consequently unable to leave the home and obtain employment; or

one party has been out of the workforce for a significant period of time and has become de-skilled or unemployable due to age; or

one party is unable to work due to illness.

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Establishing a right tospousal maintenanceThe right to spousal maintenance does not automatically flow from the Applicant receiving no or minimal income.

In circumstances where the Applicant has the potential to earn an income but is choosing not to exercise that potential spousal maintenance may be refused.

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What does a Court considerwhen making a decision?Spousal maintenance is often considered at the same time as a property settlement.

However there may be an initial urgent and/or interim application for spousal maintenance.

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What does a Court considerwhen making a decision?The Court will consider the needs of the Applicant and the capacity of the Respondent to pay. The Court will specifically consider:

1. The age and health of the parties;

2. The income, property and financial resources of the parties;

3. The ability of the parties to work;continued…

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What does a Court considerwhen making a decision?4. What a suitable standard of living is having

regard to the parties circumstances;

5. If the marriage/de facto relationship has affected the Applicant's ability to earn an income; and

6. If there are children of the relationship and if so, where those children reside.

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What are the time limits whenapplying for it? If you were married applications for spousal maintenance must be made within 12 months of a divorce order being granted.

If you were in a de facto relationship, applications for de facto maintenance must be made within 2 years of the breakdown of the de facto relationship.

Exceptions to the above include, where leave to proceed out of time is granted by the Court or the application is by consent of the parties.

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How long can you receivespousal maintenance?In most cases spousal maintenance will operate for a short period of time following separation to enable Applicants to re-establish themselves.

Usually spousal maintenance will be tailored to end upon the Applicant retraining or securing employment.

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How long can you receivespousal maintenance?In certain circumstances it may be deemed appropriate that spousal maintenance is payable for a longer period of time.

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How long can you receivespousal maintenance?An Applicant is not entitled to spousal maintenance if he or she marries another person unless the Court otherwise orders.

If the Applicant starts a new de facto relationship the Court will take into account the financial relationship between the Applicant and their new de facto partner when considering whether the Applicant is able to support himself or herself adequately.

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Turnbull Hill Lawyers – Contact UsIf you have any further questions about spousal maintenance or a related matter:Call Allysha Merrett on 1800 994 279 or email her.

We will endeavour to respond to your enquiry within 24 hours.

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