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Family Law

Spousal maintenance and what happens if you have a new partner?

By October 11, 2017No Comments

By Gianna Huesch

In Australia, spousal maintenance or de facto partner maintenance can be ordered by the family courts in certain circumstances under the Family Law Act 1975.  The Act provides that a spouse has the responsibility to provide ongoing financial support for their former partner if they are unable to meet their own reasonable expenses, in order to fund a clean break for both parties.  The amount of support payable will depend on what the spouse can afford to pay.    However, there is no automatic right to receive maintenance—the court will review all the circumstances and make an assessment based on the unique facts of every case. 

Maintenance is assessed based on two factors: the needs of the applicant spouse, and the respondent spouse’s capacity to pay.  If applying for maintenance, you’ll need to demonstrate to the court that you aren’t able to support yourself and also that your ex-partner has the financial capacity to contribute to your needs after meeting their own reasonable expenses.

The court will take into account, about both parties: their age and health, their income, property and financial resources, each party’s ability to work, what a suitable standard of living for each party is, if the marriage or de facto relationship has affected a party’s ability to earn income, and with whom the kids live.

Spousal maintenance is often ordered when a spouse is unable to exercise their income earning capacity due the ongoing need to care for children (though note spousal maintenance is separate from child support). A spouse may have been out of the workforce for significant periods of time raising kids and have now become deskilled or even unemployable due to their age. Sometimes, a party is unable to work due to illness.

Maintenance deals with the disparity of income earning capacities between the parties, not differences in actual income.  Income earning capacity is different to income—both parties must exercise their income earning capacity to its fullest extent.  A spouse can’t simply reduce their income deliberately in an attempt to avoid spousal maintenance obligations—they’ll still be deemed to earn a higher income because of their income earning capacity.

To show that you can’t support yourself, you’ll need to submit evidence such as: a history of work performed during the relationship and income earnt; information about how and when work was given up to support family or kids, and effect on income earning capacity; what has happened since separation (such as whether health issues mean you have been unable to obtain work) and expert evidence to support such claims; what jobs, if any, are available to you in the short or immediate term; and what reskilling or retraining would be required to enable you to reenter workforce after a long absence.

In terms of providing evidence as to a suitable standard of living, you’ll need to supply schedules of supporting documentation showing all your living expenses and why they are reasonable.  Future maintenance will not necessarily equate to your current spending–you’ll need to distinguish between your actual expenditure at present compared to ‘reasonable needs’ in future. After separation, funds are often drastically reduced and spending is much lower than what would normally be required to meet your ‘reasonable needs’. 

How long maintenance is paid varies. Generally, the intention is to help a party ‘get back on their feet’ but it may also be appropriate for it to be paid for a longer period of time.  Therefore, sometimes payments have a specified cut-off point in the future by which time the spouse is expected to have become self-sufficient. On the other hand, sometimes orders are open ended, if for example a spouse has the continuing care of the kids or no realistic prospect of earning a reasonable income in future.

What happens if you have new partner?

If you remarry, spousal maintenance stops unless a court orders otherwise. What happens, though, if you enter a new de facto relationship?

Under family law, if you start a new de facto relationship, the courts will look at the financial relationship between you and your new partner when determining whether or not you can support yourself adequately.  This means that for those receiving spousal maintenance, it’s often uncomfortable but necessary to consider the potential financial impact of cohabiting with a new partner. You may still be ‘testing the waters’ of a new relationship, and possibly fear you have no long term security with the new partner. Sometimes, this may leave people receiving spousal maintenance with a tough decision:  live with a new partner, or hang on to the spousal maintenance until they are sure they are in a fixed, committed, permanent new relationship.

Matters are further complicated thanks to the wide discretion the courts have in determining what constitutes a de facto relationship.  There have been cases in the Australian family courts, for example, where a couple has been deemed to be de facto even if they haven’t actually been living together in the same home.

Obtaining legal advice in relation to spousal maintenance is highly recommended, as you’ll need to be advised on your prospects for success, as well as the ultimate commercial worth of making an application. Your lawyer should also first try to negotiate to reach an agreement with your ex, so that ideally some interim payments can be arranged to support you after separation.  If you decide to go ahead and make an application, it’s also important that you and your lawyer properly prepare the application with all the necessary evidence, to give it its best chance of success and avoid having your case dismissed.

It’s also important to be aware of the time limits in place for making applications for spousal or de facto partner maintenance.  If you were married, your application for spousal maintenance must be made within 12 months of your divorce becoming final.  For de factos, applications need to be made within two years of the separation date. Outside these time limits, you will need special leave of the court to make an application, and this is not always granted.

Would you like to advice in relation to making an application for 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.

You can read the Family Court’s factsheet on spousal maintenance here:

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/property-and-finance/maintenance/

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance.

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