What is spousal support or maintenance?
Spousal support or maintenance is a payment one person pays to another after their separation. These payments are usually calculated based on the difference between a couple’s net income, if both work, and a spouse’s financial needs and the ability for him or her to support oneself. There is no guarantee that you will get spousal support or maintenance even if you establish a need or claim for support. You can get spousal support whether you have children or not so long as you establish need.
Lets face it, life does not stand still when you separate from your spouse or whilst you are waiting to get divorced. You still have bills to pay but now you may only have one income. Temporary or interim spousal support helps with your living expenses until you and your ex come up with an agreement for your support on a final basis or until the Family Court issues a final order. If appropriate in your case, ABMS LAWYERS negotiates and applies for spousal maintenance on behalf of clients as soon as separation has occurred. Important factors that determine the amount and duration of spousal support in Australia are:
This is known as the “threshold test” and is twofold limb as stated above. If the answer is an affirmative yes, then there is a likelihood spousal support will be granted.
The test of ability to support oneself is not identical to the test of whether one is in need but means whether the applicant can finance himself or herself from his or her own resources. That is to say, the test is whether by reason of earning capacity, by reason of capital or other sources of income which have accrued independently to the applicant, the applicant is in a position to look after herself. “But you should be aware there is no guarantee that even after you have satisfied the test, the Court will Order spousal support to be paid to you in certain situations. The law and the Court consider the totality of the distances of the party when deciding whether to Order spousal support, what type, how much and for how long.
Establishing a Claim
The right of a spouse to maintenance is governed by s 72(1) of the Family Law Act which says:
“(1) A party to a marriage is liable to maintain the other party, to the extent that the party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
Having regard to any relevant matter referred to in subsection 75(2).”
How much you will get and when and how depends on facts of each case. There is no guarantee that your ex will pay you the exact amount you are seeking even if your lawyer is a good negotiator. If the matter ends up in Court, do not expect that the Court will award you the exact amount of your spousal needs per month. Your spouse’s ability to pay the requested amount will be taken into account by the Court. The Court will also take into account your ex-partner’s own financial needs and any debts they may have which are due and payable. If your spouse has high debts to pay in addition to spousal support, those debts can be considered.
There are three types of application for maintenance.
If you and your ex were not married, you will need a declaration about the existence of your De Facto relationship before you claim any spousal support from your ex. Unfortunately, if you were in a De facto relationship, you will not be able to get spousal support in Perth without a declaration from the Court about the existence of your relationship first. This can be a preliminary issue in a de facto case. It can be raised by your ex in his or her response to your application for support. By raising this issue and by seeking an interim declaration, he or she disputes your right to maintenance orders. In some situations, the issue can be very frustrating.
In Perth WA, a respondent must seek an interim order dismissing the case for want of jurisdiction – meaning that the Court does not have the power to make an Order for spousal support. However, if the court does lack jurisdiction it may still award costs depending on the circumstances of the case. That is why it is important to seek legal advice from experienced lawyers. Otherwise, you could be liable for costs for no reason.
A person is in a “de facto relationship” with another person if they are not married or related to each other and, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. A “de facto relationship” includes same sex partners and can exist if a partner is married to someone else or is in another de facto relationship. Those circumstances may include:
The best way is to negotiate with your spouse, but if you are unable to reach an agreement, then you can apply to the Family Court for an Order for you to be paid spousal support and to be financially maintained by your ex. However, you need to be aware that you cannot just apply for spousal support only, your application needs to be part of your overall property settlement. The Court has the power to make such Orders as it considers “proper for the provision of maintenance” of a party to the marriage.
ABMS LAWYERS handles applications and negotiations for both Applicants and Respondents in Family Court and can negotiate how much you should receive or be paying to your ex from mid to high net assets that involve the division of assets such as business, professional degrees, high income earners and valuable assets.
De facto couples whose relationships break down (except in WA) must apply for maintenance to the Family Court of WA if there is no agreement between parties. In Perth WA, a different Legislation is used – the Family Court Act 1997. Such claims also require a 2 year relationship or a child or substantial contributions in relation to a de facto relationship (and serious injustice if the order sought is not made) or a registered relationship and either party being ordinarily resident in a participating jurisdiction when the application was made, and both parties being ordinarily resident there when the relationship broke down.
Sometimes, people don’t keep their word even if they assured you they will do it. To give yourself peace of mind, you might need to apply to the Family Court for Orders if there is no agreement or if the other party is refusing to document your agreement.
To issue an application in Court , you need to file your Initiating Application (Orders you want the Court to make both in the meantime and on a final basis), a Form 13 Financial statement to show the Court your financial situation and an affidavit (Evidence) to support your Application and showing why you need to receive Financial Support.
Once an application is made in Court and a claim is established, the Court has the power to make Orders for Spousal Support and maintenance power. The Court is empowered by law to make “such order as it considers proper for the provision of maintenance” of a party to the marriage or de facto claims for spousal maintenance.
Yes, you can for whatever reason. However you need to be aware that upon an application by your spouse the Court may still Order you to pay your spouse if, in the opinion of the Court, they have a genuine claim and have established a need to be maintained. In some cases, the Court may back date the payments.
Court procedure in objecting to a spousal support Application
To respond to maintenance proceedings, you will need to file a Response to an initiating application, a Form 13 and an affidavit containing your evidence as to why you should not pay maintenance to your spouse. But note what the Court said in one of the cases (Bevan) that the law relating to an award of spousal maintenance requires:
The Court also, in one of the cases involving spousal maintenance, stated that:
“The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself ‘adequately’. Where the line is to be drawn will depend on the circumstances of individual cases.”
Onus of proof
An applicant must satisfy the threshold to obtain financial support. If she or he fails to discharge the onus of satisfying the threshold, then the claim will fail.
Time limits for applying to the Family Court
Whatever type of relationship you were in, its important to observe timelines as each relationship has a different timeline for making applications in Court.
The deadline for issuing an application for spousal maintenance (and a property order) is 12 months after a divorce order has taken effect, except by leave of the court or consent of the parties. Leave or permission by the Court to apply out of time shall not be granted unless the court is satisfied:
De facto maintenance
A party to a de facto relationship may apply for maintenance (and a property order) only if the application is made within 2 years after the end of the relationship or 12 months after a BFA is set aside except by leave or consent of the other party.
The Court may grant leave to apply out of time on the same grounds as for spousal maintenance above.
Both types of maintenance
This time limit does not apply to applications to vary, revive, suspend, or discharge an existing Court order nor does it apply for a maintenance application brought where previous maintenance orders have been satisfied.
The Court is directed by the Act that “in exercising jurisdiction or power to take, the court shall consider only the matters referred to in section 75 (2)factors, being:
The Court can also take into account the terms of any property or maintenance order made or proposed in relation to a de facto party’s spouse or other de facto.
In certain situations, the Court may make a retrospective Order that you pay any arears which may have accrued to your ex spouse which should have been paid to your ex at a given amount or specific period. This may be backdated from the date of the Application to the time of the hearing for example.
In most cases, many people just want to move on with their lives and not be stuck with having to pay their ex spouse monthly and, in some cases, the rest of their lives with an uncertain future. For this reason, many individuals will agree to pay lump sum spousal support. There is no law against such an arrangement.
Lump sum spousal support is a one-off payment of spousal support to your spouse in exchange for that spouse never coming back for spousal support and moving on. The amount given may be high depending on your spouse financial capacity or situation, but it gives you an assurance that your spouse will never come back to ask for more money when they run out. The receiving spouse also benefits from lump sum spousal support because he or she can take that money and invest in somewhere or buy a property with it and earn interest on it rather than having to wait each month or week to get paid or be dependent on their ex.
The Court will order a lump sum payment in support of your spouse in situations where there is a bigger chunk of money and where there is a risk that the paying spouse may flee the country and never pay or if the Court has evidence that in the past, the spouse has breached Court Orders and has not fully paid spousal support.
Australian spousal support is a very complicated issue and can cost a fortune if not handled properly. It is best to consult with an experienced Family Lawyer to fully know your rights. Contact our experience ABMS LAWYERS Perth Family Lawyers at (08) 9468 3297 or email us at email@example.com for a consultation.
The law provides that if you have applied to the Court for maintenance and it appears to the court that you are in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment on an urgent basis, pending the disposal of the proceedings, of such periodic sum or other sums as the Court considers reasonable.
An application for urgent maintenance is heard at a time when all the evidence is not yet to hand.
An application for interim maintenance must not be confused with an application for urgent maintenance. In contrast, an application for interim maintenance can only be heard after each party has had the opportunity to provide evidence to the Court. This is done by filing when each of you have an opportunity to file affidavits the financial statements as to your financial circumstances.
Still, urgent spousal support applicants must establish a right to maintenance nonetheless and the Court will still follow the guidelines in determining whether you are entitled to receive it and whether your ex has the financial capacity to pay spousal support based on his ow her income.
Urgent spousal Orders are short lived and are very rarely used and are rarely a good idea. This is because applicants can usually apply quickly for interim maintenance, completing a Financial Statement and a short affidavit of evidence as to the reason for it. If you struggle with it at the hearing, however, you will not be allowed by the Court to re-label it an interim maintenance application.
A spouse who continues to live in the former matrimonial home, rent-free, has a part-time job and $6,000 was deemed by the Court not in immediate need of financial assistance at the time of her application. The Court has the power to provide emergency funding in those cases where the Court is unable to determine immediately what order should be made.
Urgent maintenance was refused in one case where the applicant had bank savings of $17,300. The Court states that urgent spousal support Orders are aimed at orders in circumstances of relieving pressing need and is determined on a rather pragmatic basis without any real hearing upon the merits. In other words, it is an order that is a stop-gap order for a short, ordinarily definitive period.
This “stop-gap” nature was illustrated in one instance where urgent spousal maintenance of $250 per week was awarded for five weeks. Such an order enables the parties to file their material and proceed to an interim (or final) maintenance hearing on the merits.
In circumstances where the husband has control of his income or control of a considerable amount of property of the parties, the Court is not shy about making Orders for interim spousal maintenance. The Court may award a lumpsum or period payments depending on the circumstance of each case.
You also need to be aware that the Court may reduce the amount awarded in spousal support if there is evidence that warrant the reduction.
An example of an interim order for periodic maintenance on top of an interim property settlement was Oates & Crest where the husband of a judicial officer was granted $107,000 towards legal costs ($80,000), rental of “superior accommodation until the final hearing” ($30,000); and furniture and household items ($14,000). As it was found that “the husband would be left with little or nothing of the $107,000 from which to support himself” after payment of such “debts and other reasonable expenses” an order was made for his “reasonable weekly needs” until the final hearing in the sum of $984 per week.
The Court has the power to determine how property proceedings, even those involving application for interim or partial spousal maintenance, should be determined so that the need for interim periodic maintenance may be assessed considering what lump sum provision should be made.
For example, a wife in reasonably good health who suffered occasional bouts of illness due to a recurring kidney complaint was considered by the trial judge to be “an intelligent woman who is capable of acquiring skills through a course of study”.
In another case, the Court heard expert evidence adduced by the husband that the wife who wanted to train as a teacher could return to employment in the public service after ten weeks of training. The wife’s evidence was that she had made no inquiries as she was not interested in doing that kind of work again.
If you want to claim spousal support based on a disability or ill health, you must be able to produce evidence that goes to show the type and extent of your medical issues or disability and impact on your capacity to earn an income and to support yourself. A 2 day absence from work medical certificate is not going to cut it. You may need an affidavit from your health practitioner to support your claims. You need to also be aware that your claims of ill health may be disputed by your ex.
It is also better to be careful about not exaggerating your medical condition.
In one case, the Court dismissed the maintenance claim of a 47-year-old wife who was found to have a heart complaint but to have exaggerated her claimed disability and not met her obligation of seeking out work that, according to her doctor’s evidence, she was capable of undertaking. Her admission to being a regular bowler (of which her doctor was unaware) did not help her case.
In another case, the Court rejected a husband’s claim of incapacity for other employment due to profound hearing loss in both ears, and limited command of English, finding that he had been “continuously employed as a process worker (for) many years and was otherwise in good health and was likely to continue in employment in the foreseeable future.”
In another case, a husband’s injuries were held not to be relevant where he had a reasonable prospect of recovering $70,000 for those injuries.
There was a case where a husband had obtained an interim order from the court that a wife alleging ill health preventing her from working submit to an independent examination where rheumatologist, pain and other symptoms were alleged and psychiatrist brought in to give evidence where a psychiatric condition was alleged.
Although applications for an order for an independent examination are unusual, there is precedent for them. They are available for the rebuttal of medical evidence filed by an applicant.
The Court allowed the mother of a 16-year-old child to work three instead of five night shifts a week but did reduce the amount of the maintenance order.
A wife’s earning capacity as a nurse was held to be inhibited by caring for two children for the 17 weeks of the year and weekends when they were not at boarding school.
Permanent spousal support may be granted at the time of the trial of your property settlement. If the matter is before the Court, the Court may determine how long spousal support will be provided and how. Permanent spousal support in very long marriages may mean that you may have to pay your ex spouse indefinitely or until you retire or die. In cases where your spouse caused the breakdown of your marriage or relationship like having an affair, you may struggle with Orders like that which may seem very unfair to you. Unfortunately, Australia is a no “fault jurisdiction” which means the Court does not take infidelity into account when Ordering spousal support.
Spousal support in Perth is mostly based on the capacity of a party to pay any amount being requested or Ordered and a spouse having an inability to support herself or himself adequately for various reasons.
If you are one of those people who has a spousal support court order or binding financial agreement and your spouse is simply not paying you what she or he needs to pay you as per your agreement, you will need to act quickly to enforce spousal support in the Family Court which can be a frustrating and confusing process and time.
How you will have to pay or receive spousal support depends on your situation. Interim Orders may be made into final Orders if required, otherwise they may be dismissed by way of Court Order or by consent.
If you are under employed or unemployed purposely, then the Court can impute income to you and determine spousal support based on that income. So for example, if you stop working to get as much spousal support as possible, the Court will determine your ability to earn an income and perform the spousal support calculations based on that.
If the matter does not settle and proceeds to trial, at the time of the trial, the Court will consider all the evidence in respect to your financial position as well as your spouse’s. After the trial, the Court may set side the Order for spousal maintenance or may increase or decrease the amount if necessary. The Court may also make an Order for your spouse to maintain you for a specific period of time and on very rare cases, can make an Order on a permanent basis but the circumstances must justify that as the Court do not like making Orders indefinitely.
After temporarily or spousal support is ordered, you or your spouse can come to an agreement or apply to change it in certain circumstances. If your spouse has been ordered to pay spousal support but is not, you can apply to enforce your spousal support.
Judges do not like Court Orders being breached so unless your ex has a particularly good reason for not having paid, you will get the remedies from the Court to ensure your ex does not breach Court Orders again. If you have a Court Order and your spouse is simply not paying the spousal support you deserve, follow the steps below:
In certain situations, where spousal maintenance and a property order are sought, spousal maintenance is to be dealt with after the determination of property settlement and may not be dealt with in isolation.
The scope for varying a property order is more limited than for a spousal maintenance order.
The inclusion of a maintenance component in a property settlement does not preclude a party from later claiming periodic or lump sum maintenance, subject to the time limit.
ABMS LAWYERS can help you to achieve that. We specialise in Divorce and Family Law matters in Perth, so contact our experienced Divorce and Family Lawyers for advice on how to go about enforcing your rights to spousal support. Contact us on (08) 9468 3297, via email or make an online booking.
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