Spouse maintenance can be ordered through the courts if a spouse can prove they can’t support themselves and that their ex has the ability to pay. It isn’t designed to be paid for life, but is ordered for a prescribed time period, usually for as long as it is deemed necessary for the receiving party to ‘get back on their feet’. There are also time limits in place for applications to be made: if you were married, you have 12 months from the date of the divorce to make an application; if you were in a de facto relationship you have 24 months from the time the relationship broke down. However, as a case reported in The Australian demonstrates, time can be somewhat elastic. Let’s take a closer look…
In the case known as Blevins & Blevins [court pseudonyms], a 71 year old ex-husband is facing a spouse maintenance claim 23 years after his marriage ended and despite ‘final’ property settlement orders having been made many years ago. Why is this so?
About spouse maintenance generally
When a relationship ends the Family law Act provides that financial assistance may be ordered to be provided to a spouse or a de facto partner if they can prove they are not able to support themselves from their own assets or income, and that the other party has the capacity to make those payments (after meeting their own living expenses). The obligation can continue after separation and divorce, but does not typically continue for life. It can be for quite a short period in some cases—as long as it’s sufficient to allow the beneficiary party to retrain and seek employment, or until they receive their share of the property settlement. However, the court does have the power to make more open-ended orders in rare circumstances.
Maintenance is assessed based on two factors: the needs of the applicant spouse, and the capacity of the respondent spouse to pay. When applying for maintenance, the applicant must demonstrate to a court that they are unable to support themselves and also that their ex-partner has the financial capacity to contribute to their 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 any children live.
In the Blevins case, the couple’s property proceedings were “finalised” in the family courts back in 1999 and the man remarried. In 1999, he was ordered to pay his ex-spouse $750 a month for ten years.
At the end of that period, in 2009, the ex-wife revived proceedings with an argument that she was unable to continue to support herself. At that time, the man “agreed to an order that he pay her a lump sum of $275,000”, which he paid that year. At the time, the parties signed documents which said that they “anticipate that the settlement will be a final one and that your client [the man] will not have to contribute further”.
But fast-forward to 2019, and the ex-wife made a third application for spouse maintenance, asking for $400 a week. Per The Australian:
“She told the court she had lost access to the Age Pension in 2017 after the assets test changed to take into account superannuation, and her savings and super did ‘not generate enough income to enable her to meet her reasonable needs’.”
The man wanted the courts to dismiss this new claim on the basis that after “two goes at this”, the wife should be denied the court’s permission to make the application. He said both parties “had acknowledged the 2009 [consent] order was final”.
But the judge in the matter disagreed that the ex-wife actually needed the court’s leave to make another application, and let the case proceed to trial where a ruling on the claim would be made:
“In her judgment in July, [the judge] said there was a distinction in the Family Law Act between the ‘finality principle’ that applied to property settlements and spouse maintenance.”
When can’t spouse maintenance be claimed?
So when would it actually have been impossible for the ex-wife to bring a new claim?
The situation is not clear if a receiving spouse has entered a new de facto relationship: the courts will need to forensically look at the financial relationship between the de factos when determining whether or not the ex making the spousal maintenance claim can in fact support themselves adequately.
Obtaining legal advice in relation to spouse maintenance is highly recommended, as you’ll need to be advised on your prospects for success, as well as the ultimate commercial benefit 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.
If you need help with a spouse maintenance claim, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services 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 Legal Services.
Source: The Australian (subscription required)
You can also read the Family Court’s (brief) factsheet on spouse maintenance here.
You may also like to read one of our previous blogs on spouse maintenance here.