After the end of a marriage or de facto relationship, one party may make payments to the other, which is known as spousal maintenance. This may be ordered by the family courts, or it may be set up by the parties in a private arrangement. When dealt with in the courts, these matters (in all states and territories except WA) are handled under the Family Law Act 1975. It can be paid either in a lump sum, on an interim basis or on an urgent basis. Let’s take a quick look at the different types of spousal maintenance.
The test
In working out whether to order spousal maintenance, the courts will assess whether:
- The person applying for maintenance has any ability to support themselves;
- Whether the person applying for maintenance, after exercising their ability to support themselves as far as possible, still has a demonstrable financial need;
- Does the paying person have the financial capacity to provide maintenance, taking into account their own needs?
If this test is met, the courts may order spousal maintenance. Here’s a quick rundown of the different kinds of spousal maintenance that can be ordered: lump sum, interim or urgent spousal maintenance.
Lump sum spousal maintenance
This is ordered when maintenance is determined to be payable, but the circumstances are such that the party to pay doesn’t have the income to make ongoing, periodic payments. Courts will then look at what assets the paying party has and their value in order to ascertain whether or not to order a lump sum to be paid, rather than periodic payments.
It might also be more practical for maintenance to be paid in a lump sum if there’s a risk of non-payment or other difficult circumstances, for example, the paying party is moving overseas.
The section of the Family Law Act that deals with this is section 77(A) (for married couples) and section 90SH (for de factos).
Interim spousal maintenance
Interim orders are temporary orders that are in place until a matter is heard in a final hearing or the matter is resolved by consent on a final basis. It is intended to help a party who needs maintenance right after the end of the relationship. Interim maintenance is dealt with under section 74 (for married couples) and section 90SE (for de factos) of the Family Law Act.
A party may need interim spousal maintenance because they have the full-time care of small children and can’t work, or will have difficulty quickly re-entering the workforce due to a long absence, or because they will need to first retrain in order to find employment. A large disparity in incomes can also be a reason why the courts will order spousal maintenance but the receiving party still needs to show that they are unable to meet their financial needs on their existing income.
Both parties involved will need to file affidavit evidence and a financial statement that allows the court to assess each party’s financial position, before orders for interim spousal maintenance can be made.
In the event that new and relevant issues arise that may affect the interim spousal maintenance payment, each party still has the right to bring a new application in a case before the final resolution of the matter.
Urgent spousal maintenance
Urgent spousal maintenance can be ordered to be paid either in a lump sum or on an ongoing, periodic basis. It’s dealt with under section 77 (for married couples) and section 90SG (for de factos) of the Family Law Act.
Such an order is typically made in a situation considered a potential emergency and where a clear need can be demonstrated, but where parties have no time to provide evidence. This means urgent applications are dealt with in a “summary” manner, in other words the courts will not be required to first review evidence relating to finances from the parties.
The purpose of these sections is to enable courts to issue orders that can relieve a pressing, urgent, current need of a party. The courts have the discretion to determine an application for urgent spousal maintenance on its face and can dispense with the usual time taken to hear an application on its merits.
Urgent payments are often ordered for parties who are the main parenting party and need money urgently to get the children settled somewhere or for everyday expenses. It may also be necessary for urgent payments if one party has cut off the other party completely from access to their financial resources.
Arrangements may be put in place until, for example, the family home is sold, or a party gets a new job, or a property settlement is finalised.
Speeding up the process
Applying for spousal maintenance through the courts, however, is not an instant process, even for an urgent maintenance application. There may be other options available as well, such as negotiating through lawyers or attending mediation.
Would you like family law advice in relation to spousal maintenance? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
You may also like to read our blogs on what happens with spousal maintenance if you have a new partner and Are you eligible for spousal maintenance?
