1. Back in the day, deserting your spouse was more common than divorce. As a result, many spouses were left to fend for themselves. This made it necessary for the abandoned spouse to apply to the Court for orders that their spouse provide financial support. If an order for financial support was made by the Court, it was usually difficult to enforce because the spouse could not be found or had no incentive or funds to pay.
2. The Courts eventually recognised there was an issue with the system, leading to developments in legislation and case law. These changes brought us the Family Proceedings Act 1980 (Act) that is in place today. Part 6 of the Act relates to Maintenance of spouses and de facto partners (Maintenance) which is financial support paid from one partner to the other, where that partner’s own income is not sufficient for them to be able to meet their own reasonable needs.
3. People who are either married, in a civil union, divorced or de facto partners who have separated are covered by the provisions of Part 6 of the Act. For de facto relationships of less than 3 years, a Maintenance order cannot be made under section 70B of the Act unless:
a. there is a child of the relationship;
b. the partner has made a substantial contribution to the relationship; or
c. the Court is satisfied that not making the order would result in serious injustice to the claiming party.
4. Section 70B of the Act restricts Maintenance orders in short duration de facto relationships however it does not mean that section 82 interim Maintenance cannot be ordered. If there are no children of a short duration de facto relationship you can still apply for interim Maintenance, this was made clear by Justice Brewer in the 2013 High Court case of RMA v JB.
5. The Family Court can make orders for interim (temporary) Maintenance and / or final Maintenance. I will explain each type of Maintenance in turn below.
Interim Maintenance under section 82 of the Family Proceedings Act 1980
6. Interim Maintenance is common and usually applies when relationship property has not yet been divided (for example, the family home has not yet been sold or proceeds divided between the parties). The partner in need (Party A) can apply to the Family Court for an order that interim Maintenance be paid by Party B for up to six months to help meet his or her reasonable needs. The Court considers applications for interim Maintenance orders based on what it considers “just.” In determining what is “just” the Court will consider:
a. Party A’s reasonable needs; and
b. Party B’s ability to meet those needs.
7. The Court needs evidence of Party A’s needs and how they have worked out the sum they require. This evidence is provided by Party A completing a Court prescribed budget form called an “affidavit of financial means and their sources.” To defend the application, Party B must provide a breakdown of their financial position, more information on this is set out below at paragraph 14.
8. The wording of section 82 of the Act suggests that lumpsum interim Maintenance orders should not be ordered as it refers to a “periodical sum” towards the “future maintenance”. However, previously the Court has granted lumpsum interim Maintenance orders despite the wording of section 82 of the Act.
Final Maintenance under section 63 and 64 of the Family Proceedings Act 1980
9. Final Maintenance orders are orders made on a final basis with the intention to be permanent, it is common for final orders to specify a time limit or event in which they will expire. Section 63 of the Act sets out the criteria for married and civil union couples to apply for final Maintenance orders while they are still married or in a civil union. Section 64 sets out the criteria for separated de facto and divorced couples.
10. Maintenance is commonly paid after a separation under section 64 of the Act when the breadwinner stops contributing their income to the relationship and the other partner is unable to meet their reasonable needs because of any one or more of the following circumstances (Qualifying Circumstances):
a. The ability of the party to become self-supporting having regard to the division of functions in the relationship while the parties lived together (for example if one party put their promising career on hold to raise the couple’s children for a long period of time, they may have more difficulty supporting themselves financially), the likely earning capacity of each party and any other relevant circumstances.
b. The ongoing responsibilities of each party for minor or dependent children of the relationship after the parties ceased living together.
c. The standard of living of the parties while they are living together or lived together.
d. The undertaking of education or training by the party applying for Maintenance where that training is designed to increase their earning capacity, if it would be unfair for that party to meet their own needs because either:
i. the effects of the division of functions within the marriage or the responsibility of that party for ongoing care of children on their potential earning capacity; or
ii. because that party has previously contributed to the Maintenance of the higher earning party during a period of education or training.
11. Maintenance can be ordered under section 63 (Maintenance during marriage or civil union) if one or more of the same Qualifying Circumstances set out at paragraph 10 above are met or if the applying party cannot meet the whole or any part of their reasonable needs because of:
a. Any physical or mental disability; or
b. Any inability of a party to obtain work that:
i. It is reasonable in all the circumstances for that party to do; and
ii. It is adequate to provide for that party.
12. Should the Court decide to make an order for Maintenance, it will consider a range of factors in assessing how much Maintenance should be ordered. These factors are set out in section 65 of the Act and include the means of each spouse (which is not limited to taxable income and can include all resources within their control), each party’s reasonable needs, whether the wealthier party is supporting any other person, the financial and other responsibilities of each partner and any other circumstances that make one partner liable to maintain the other. Each case is decided upon a unique set of facts, so no two cases are the same! In addition, section 62 of the Act states that the liability to maintain any person is not extinguished by reason of the fact that the person’s reasonable needs are being met by a domestic benefit. Under sections 68 and 69 of the Act, the Court may order a periodical sum towards future Maintenance and/or a lump sum towards future and/or past Maintenance as it thinks fit.
13. The period for how long Maintenance will be ordered to be paid depends on the facts. Some factors considered are the age of the parties, duration of the relationship, the claiming party’s ability to become self-supporting regarding the division of functions (e.g. whether they care for dependent children) and other relevant circumstances such as whether the claiming party is undertaking a period of training that should enable them to become self-supporting and the duration of this. Maintenance is to continue for a reasonable amount of time, what is “reasonable” depends on the circumstances of each situation. Maintenance is not usually intended to be a lifelong responsibility. After the reasonable period of Maintenance ordered by the Court has expired, the claiming party will be responsible for meeting their own needs. However, section 64A provides that regardless of the rule that each party must assume responsibility for meeting their own needs within a reasonable period of time, section 64A states that Party B is liable to maintain Party A if having regard to the matters listed below, it is unreasonable to require Party A to go without Maintenance and it is reasonable to require Party B to provide Maintenance:
a. The ages of the parties (for example if they are elderly and the party with a lower income is not realistically able to re-join the workforce);
b. The duration of the relationship (for example if it was a marriage of 60 years); and
c. The ability of each partner to become self-supporting having regard to:
i. The effects of the division of functions in the relationship;
ii. The likely earning capacity of each partner;
iii. Responsibilities for ongoing daily care of the couple’s children; and
iv. Any other relevant circumstances.
Defending an application for Maintenance
14. If an application for Maintenance, whether interim or final, is made against you, you will need to let the Court know you intend to defend the claim. There is usually a set timeframe which is reflected in the notice given to you when served with the claim. To defend the claim, you will need to file an affidavit of financial means and their sources, as well as provide further evidence in your affidavit of support (or referred to as a “narrative affidavit” because it tells your story). Evidence is crucial as the Court determines the outcome from the evidence provided by both parties. The evidence the Court assesses is each party’s financial sources including income and outgoings over a period of usually 12 months prior to the affidavits being filed. There is also a consideration for other people living with you (including stepchildren) and the income or expenses incurred as a result. From your narrative affidavit, the Court looks at any evidence you may have to contradict the claims made by the claiming party. In addition, section 66 of the Act provides that the conduct of the partner seeking Maintenance is relevant to the Court’s determination of whether and how much Maintenance should be payable. Section 70A of the Act provides that any Maintenance obligations will end if the claiming party enters a new marriage, civil union, or de facto relationship with someone else.
15. Should you be ordered to pay Maintenance, you can apply for Maintenance to be discharged or varied under section 99 of the Act, generally when there is a change in circumstances to support this.
Case Law
16. As above, the Courts have discretion on what to award and why. Below are some examples of cases:
In the 2012 Family Court case of Hodson v Hodson, Mrs K gave up her employment to fit in with her husband Mr K’s lifestyle which included overseas travel and expenditure involving large sums of money. Upon Mrs K’s application for Maintenance, Mr K argued Mrs K’s budget was unreasonable and excessive. However, Judge McHardy in the Family Court said Mrs K should not be deprived of the luxurious lifestyle she had enjoyed with Mr K overnight. Judge McHardy formed the view that Mrs K was entitled to a significant award of interim Maintenance of $10,000 per month, increased should she vacate the former family home. Mr K appealed the decision, and his appeal was dismissed. This case highlights that reasonable needs are benchmarked to the lifestyle enjoyed by the parties during the relationship and the paying party’s lifestyle is relevant.
In the 2011 High Court case of B v B, the Judge reversed the Family Court’s decision to stop Maintenance payments from an application under section 99 of the Act (which allows the Court to discharge, vary, or suspend existing Maintenance orders). The Judge found the Family Court Judge did not have proper regard for the difficulties faced by the wife after a long period of dedicated parenting, including parenting of a special needs child. As a result, the Judge increased the Maintenance period for a further year.
In the 2021 High Court case of Stanley v Owens, the Court dismissed the former wife’s appeal against the Family Court’s decision declining her application for Maintenance following the divorce with her former husband. The Court ruled that the former husband had liability to pay Maintenance and the former wife’s claims highlighted her reasonable needs, but it was found that the former husband did not have the means or ability to pay Maintenance. The former husband did not have any significant assets and only had fair credit standing due to previous business difficulties, therefore it would be inequitable to require him to borrow money to pay Maintenance as he had assumed responsibility for repayment of substantial relationship debts. It was also ruled that the former wife’s inability to re-join the workforce at a senior level she had previously enjoyed did not justify the former husband being required to pay Maintenance. It was found that it was appropriate that the former wife would need to re-enter the workforce at an intermediate level and progress to a senior role.
We are here to help you!
17. If you are going through a separation and the questions of Maintenance are arising, we are here to help! We can negotiate this on your behalf and hopefully avoid going to Court. However, if you and your ex-partner are unable to agree, we can help with your application to (or defend in) the Court. If you are considering applying for Maintenance, it is best to apply as soon as possible. Likewise, if you have been served with a Maintenance application, it is best to see us as soon as possible. Please contact our Dispute Resolution and Family Law team.
