When you’re going through a divorce and property settlement, you might hear the phrase clean break used. This term is used in family law to describe the ultimate goal of having separated couples each go their own way with no remaining ongoing financial ties between them (aside from child support when there are children involved, but this is handled by the Child Support Agency rather than the family courts determining a property settlement).
But a clean break is rarely easy or straightforward. Depending on the unique circumstances of each case, when the family law courts are tasked with working out the financial terms of a divorce, their aim is to create a fair division of the available and future assets. Contrary to popular belief, though, there is no automatic or fixed formula to split assets.
Instead, the courts assess the nature of the marriage and the impact it had on the spouses, so that they can adequately recognise the contributions each party made to the marriage as well as each party’s needs going forward. And while the court system is designed to enable separated parties to move on with their lives financially –in most cases it’s in everyone’s interests to sever all financial ties on divorce and achieve a clean break–sometimes it may still be necessary to keep separate parties financially linked for a period of time.
Maintaining financial ties after separation is usually designed to protect a dependent spouse, especially a spouse who has raised children at the cost a career. In that case, a ‘breadwinning spouse’ can be compelled to finance the upkeep of the financially dependent spouse, until that spouse can become financially independent.
Some ex-spouses may have the ability to be financially independent moving forward, and are therefore happier to receive a lump sum in the property settlement. However, other ex-spouses may prefer ongoing, periodic spousal maintenance because they are require ongoing support.
In Australia, the Family Law Act specifically states that: “A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
c) for any other adequate reason”.
Spousal maintenance is not automatically granted, however. It’s up to the court to review all the circumstances and make an assessment about the needs of the dependent spouse as well as the other spouse’s capacity to pay.
When the courts order spousal maintenance to be paid, it’s rarely open-ended and instead is typically for a defined period of time. Usually, the aim is to enable the dependent spouse to “get back on their feet”, often after having been out of the workforce for a long period of time. The orders the court makes about spousal maintenance usually have a specified cut-off date by which the dependent spouse is expected to have become self-sufficient.
In most cases where spousal maintenance is ordered, it will end once the overall property settlement is finalised, allowing the clean break to occur at that point. It can however be specified to end only when certain conditions arise, such as the re-partnering of the dependent spouse, or once the dependent spouse has retrained, re-skilled or obtained employment, or when the youngest child reaches a particular age.
Please be aware of the time limits in place for making applications for spousal maintenance. If you are/were married, your application for spousal maintenance must be made within 12 months of your divorce becoming final. For de facto couples, your application need to be made within two years of final separation. Outside these time limits, you will need leave of the court (permission) to make an application, and this is not always granted.
You can also read our blog on spousal maintenance for much more detail on how applications for spousal support work.
Do you need assistance with a spousal support application? 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.