The breakdown of a marriage is almost always an emotionally taxing experience for both partners. While there is the emotion and stress that is usually at the forefront of a separation, there are a multitude of other factors that need to be considered during the process. Often, the first issue that needs to be addressed when a long-term relationship deteriorates is how the shared assets of the couple are to be divided.
One of the many considerations that may arise when this process is occurring is the issue of one party providing spousal maintenance to the other. Spousal maintenance is the provision of financial support by one spouse to another after separation. Orders for Spousal Maintenance can take various forms including:-
- By Consent between the parties
- By the Judge after a defended hearing
- As directed to meet urgent maintenance needs
- Periodically (and may continue indefinitely);
- A lump sum payment;
- A right to live in the matrimonial home or use of vehicle;
- Secured by a charge of the payer’s assets
- Backdated payments
Since the particulars of spousal maintenance can sometimes be difficult to determine, the court has a wide scope within which it can make orders under the Family Law Act. Aside from the financial position of both parties at the time of separation, there are a myriad of different factors to take into consideration. These can include things such as:
- the age of both parties;
- the mental and physical health of both parties;
- the capacity for each partner to find employment after separation;
- the duration of the relationship;
- ensuring that both spouses have a reasonable standard of living;
- whether or not any pensions or government benefits are being claimed;
- whether either party has since begun another live-in relationship with another party;
- which spouse is caring for the children of the marriage;
- whether either spouse has a responsibility to support another person.
In Mitchell and Mitchell a property division of 90% in favour of the wife of an asset pool of around $300,000 did not bar her from the right to apply for Spousal Maintenance. In fact, the trial judge ordered that she also be paid $150 per week on an interim basis as the Court was satisfied that the Wife needed the maintenance and the Husband had the capacity to pay it. Interestingly, on appeal the Full Court increased the Wife’s property settlement from 90% to 100% of the available property interests.
While there are many situations under which spousal maintenance might be granted, parties need to be aware that there are some limitations on when a court can act. If a Binding Financial Agreement has been entered into that covers the particulars of spousal maintenance, there is little the court will be able to do in that regard. Applications for a court order need to be made within one year of finalisation of a divorce for married parties, and within two years of the end of the relationship for de facto parties.