Doha Khodr
Senior Migration Paralegal
Family Law, Divorce & Separation
Spousal Maintenance
Depending on your circumstances, you may be able to apply to the Court for Spousal Maintenance.
When Can You Apply
The court has power to make a spousal maintenance order that it considers proper. There is a one (1) year time limit on applying for a spousal maintenance order. There are exceptions in which you can apply for spousal maintenance outside of the time limit.
Types of Orders
After separation, there will be two avenues available to you, depending on your circumstances. You may be able to apply for an urgent maintenance order, if you are in immediate need of financial assistance. Although the Family Law Act does not define ‘immediate need for financial assistance’ urgent maintenance orders are designed to deal with ‘urgent situations’. They are normally relevant for a defined period of time and they are in the nature of stop-gap orders. The benefit of this avenue is that orders can be made ex parte, namely without the presence of your ex-partner.
Under section 80(1)(h) of the Family Law Act, you may be able to apply for an interim maintenance order until a further order has been made by the court.
Spousal Maintenance
Criteria for Spousal Maintenance
To be eligible for spousal maintenance, you must demonstrate that:
- you are unable to adequately support yourself; and
- your ex-partner has capacity to pay, such that he or she can support you.
In determining whether you are unable to support yourself adequately, the court will have regard to the following:
- Whether you care for and have in your control a child of the marriage under the age of 18;
- Your age and your physical or mental capacity for gainful employment; or
- Any other adequate reason.
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Spousal Maintenance
The court has generally held that a party does not need to ‘exhaust his or her modest capital before applying for maintenance’.
This means that you may apply for spousal maintenance orders even though you have assets or income available. If property orders have been made and you have been provided with assets from the property pool, you may nevertheless be eligible for spousal maintenance, depending on the factors in section 75(2) of the Family Law Act. It should also be noted there is no requirement that the party’s pre-separation living standard be maintained after separation.
In addition to the factors under section 75(2) of the Family Law Act, in determining whether the other party (ex-partner) is able to support you, the court will take into consideration the other party’s income and his or her reasonable living expenses.
The court is also required to consider whether any of the factors under section 75(2) are applicable to your case.
Some of the considerations are as follows:
s 75(2)(a): The age and state of health of each of the parties;
s 75(2)(b): The income property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
75(2)(c): Whether either party has the care or control of a child of the marriage who has not attained the age of 18;
s 75(2)(j): The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
s 75(2)(k): The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
s 75(2)(o): Any fact or circumstance, which, in the opinion of the court, the justice of the case requires to be taken into account;
Orders
The court has power under section 80 of the Family Law Act to make orders such as ordering a lump sum payment or requiring payment of a weekly, monthly, yearly or other periodic sum. The full list of orders available to the Court are under section 80(1).
Your Duty of Disclosure
People involved in family law or de facto matters have a duty to disclose all information and documents that are relevant to their case, and which are (or have been) in their possession or which they have the authority or ability to obtain.
The duty of disclosure starts from the time that you first commence negotiations until your family law matter is finalised, regardless of whether there are court proceedings on foot.
The Duty of disclosure brochure gives information about what documents are relevant. If you are not sure if a document is or is not relevant, contact us and we can advise you if a document is relevant.
Documents and Questions we will ask
If you have any questions or concerns in relation to this duty of disclosure get in touch with us so that we can discuss the issue and provide you with specific advice.
In summary:
- You have a duty to provide full and frank disclosure of all information relevant to your financial circumstances and the matrimonial property
- This duty commences immediately and continues until the matter is resolved on a final basis;
- This means you are required to disclose to the other party (via solicitors) information including but not limited to any changes to your income, disposal of assets by way of sale, gift, transfer or other means, increases in liabilities and any other changes, for example, receipt of inheritances, receipt of lottery or other windfalls, losses of significant sums of money;
- In addition to disclosing information, you need to provide copies of documents relating to your financial circumstances. The Federal Circuit Court Rules 2001 and the Family Law Rules 2004 both provide obligations for discovery in financial and parenting matters. There are both general provisions for discovery and specific discovery required prior to court dates.
- Copies of your tax returns and notices of assessment for the past three financial years;
- Copies of superannuation member statements for each superannuation interest in your name;
- If you have an interest in a self-managed superannuation fund, a copy of the trust deed for that fund and copies of the financial statements and tax returns for the funds for the past three years;
- If you have an interest in a partnership, a copy of that partnership deed and financial statements and tax returns for that partnership for the past three years;
- if you have an interest in a publicly listed company, copies of the share statements relating to each of those interests for the past 12 months;
- If you have an interest in a company which is not publicly listed, a copy of the company’s constitution, and a copy of the financial statements and tax returns for that company for the past three financial years;
- If you have an interest in a trust by way of beneficiary entitlement or are a trustee or appointor, a copy of the trust deed and a copies of the financial statements and tax returns for that trust for the past 12 months;
- If you have disposed of property in the 12 months preceding separation or since separation, documents evidencing that disposal;
- If you receive a wage or salary payment, copies of your three most recent payslips;
- If you otherwise own or control a business, copies of the business activity statements for that business for the past 12 months;
- Copies of bank statements for each bank account held in your name or in which you have an interest for the past 12 months; and
- Copies of the bank statements for any loans held on properties for the past 12 months (if you have the capacity to obtain or hold these documents).
- Any final court order or agreement can later be set aside or overturned; and
- The court has the power to exclude the evidence that has not been disclosed, dismiss your case, make a costs order against you or find you guilty of contempt of court and impose further penalties.
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