In the event of a separation, whether it be from your partner by marriage or a de facto relationship, the Family Law Act 1975 (“The Act”), creates an obligation for either party to financially support the other, if they are in a financial position to do so, and in the event the other party cannot support themselves.
In simple terms, when deciding whether or not a party is entitled to the payment of maintenance, the court will consider the level of need of the Applicant balanced against the Respondent’s capacity to pay.
In other words, the court will look at the income and living expenses of the person seeking the payment of maintenance and the income and living expenses of the person being asked to pay the maintenance.
It may be that the person seeking the payment of maintenance has a high level of need. However, the person required to pay the maintenance does not have the funds available. In those circumstances, it is unlikely that the court will make an order for the payment of maintenance.
When determining whether or not a person may be entitled to receive the payment of maintenance the court will take into consideration the following:
- The extent to which the person has the responsibility of caring for a child of the relationship who has not reached the age of 18 years;
- The age, physical and mental incapacity of the person which affects their ability to obtain employment; or
- For any other adequate reason.
Having regard to section 75(2) of the Act which includes (this is not an exhaustive list):
- The age and state of health of each of the parties;
- 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; and
- Whether either party has the care and control of a child of the relationship who has not reached 18 years;
- Commitments of each of the parties that are necessary to enable the party to support;
- himself or herself; and
- a child or another person that the party has a duty to maintain; and
- the responsibility of either party to support any other person; and
- the eligibility of either party for a pension, allowance or benefit;
- the standard of living that in all of the circumstances is reasonable;
- whether the payment of maintenance would assist the other party to undertake a course of education or training or to establish him or herself in a business or otherwise to obtain an adequate income;
- any debts to creditors;
- the extent to which the person who is going to receive the maintenance has contributed to the income, earning capacity, property and financial resources of the other party;
- the duration of the relationship and the extent to which it has affected the earning capacity of the person who is to be paid the maintenance;
- the need to protect a party who wishes to continue their role as a parent;
- if either party is cohabitating with another person and the financial circumstances associated with that relationship;
- any child support being paid or liable to be paid.
If you were married, then you have 12 months from the date of Divorce being made final to make an Application to the court for maintenance. If you were in a de facto relationship, then you have 2 years from the date of separation to make an Application to the court.
In the event you re-marry you generally will not be entitled to be paid maintenance from your former partner, unless otherwise ordered by the court.
Alison Brown, Senior Associate, Koffels Solicitors & Barristers
This article has been republished by Divorce Resource with the requested permission of the author.