Spousal and De Facto Maintenance
“Maintenance” refers to any material provision that extends beyond mere subsistence.
Given the breadth of this definition, maintenance can take many forms. This includes provision for:
• Daily care for children
• Litigation expenses
• Health care
• Food, etc.
Accordingly, orders for spousal maintenance are open to various formulations, including orders that:
• A spouse be permitted to occupy the former matrimonial home
• A person pay money to their spouse as a lump sum or on a periodic basis
• A person pay money to their child as a lump sum or on a periodic basis, etc.
The liability to maintain a spouse arises under s 72(1) of the Family Law Act. This section provides that:
“(1) 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;
having regard to any relevant matter referred to in subsection 75(2).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.”
The first requirement in virtue of which a person is required to maintain their spouse consists in the following: namely, the spouse seeking maintenance is “unable to support herself or himself adequately.” This should not be confused with a requirement that the person seeking spousal maintenance must demonstrate a need for maintenance. A spouse could very well have no need for maintenance on account of financial assistance from a generous relative or Centrelink. This, however, does not imply that the spouse in question is able to adequately support themselves.
The second requirement is that the person from whom maintenance is sought is reasonably able to support their spouse. This requirement is also a limit on the amount of spousal maintenance sought. In other words, a person cannot seek more maintenance than their spouse is reasonably able to provide.
Maintenance can also be sought from a de facto partner. The requirements differ from those that apply to married couples.
Please contact our office for an initial consultation if you seek advice concerning your maintenance entitlements or liabilities.