S6 Maintenance Flashcards
what is spousal maintenance?
it is financial support paid in
circumstances where one party has a proven “need” for
financial support and cannot meet their own
reasonable expenses from their income or assets, and the
former spouse/partner has the proven “capacity” to provide that
financial.
under which sec, a former partner/spouse has the right to spousal maintenance?
S72 FLA
(1) A party to a marriage is liable to maintain the other party, to the extent that the firstmentioned 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 subsection75(2).
which sec outlines the Matters to be taken into consideration in relation to spousal maintenance?
s75 (2) FLA
(a) the age and state of health of each of the parties
(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
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
(d) commitments of each of the parties that are necessary to enable the party to support (i) themselves and (ii) a
child of another person that the party has a duty to maintain
(e) the responsibilities of either party to support any other person
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
(h) the extent to which the payment of maintenance would increase the earning capacity of that party by enabling them to undertake a course of education or
training or to establish themselves in a business or otherwise to obtain an adequate income
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
(j) the extent to which the party seeking maintenance has contributed to the income, earning capacity, property and financial resources of the other party
(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
(l) the need to protect a party who wishes to continue that party role as a parent
(m) if either party is cohabiting with another person–the financial circumstances relating to the cohabitation
(n) the terms of any order made or proposed to be made under section 79 in relation to (i) the property of the parties or (ii) bankruptcy
(naa) the terms of any order or declaration
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in
the future, for a child of the marriage;
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
(p) & (q) the terms of any financial agreement
should the court take into consideration of the applicant’s entitlement to pension, allowance or benefit ?
under s75(3) FLA, No
What is the difference between maintenance and property division?
Maintenance is provided to meet the applicant’s current and future needs which he/she cannot meet, While property settlement is about the division of asset according to past contributions.
can anyone apply for spousal maintenance?
No, they have to meet the requirements;
- Australian citizen; or
- Permenant in Australia; or
- Resident in Australia for 12 months prior to the application
what is the threshold test for spousal maintenance?
Pursuant to s72(1) a former spouse is liable to pay spousal maintenance ‘if, and only if, that other party is unable to support herself or himself adequately’ having regard to the relevant factors set out in 72(1) and 75(2).
The test is not whether the applicant is in need of maintenance but rather if the applicant can demonstrate if that they are not in a position to support themselves with their own resources.
factors taken into account by the court in regards to SM is categorised into;
Personal circumstances
Obligations to others
Past circumstances
Conduct & fault
types of SM order?
- Lump sum (whether in one payment or instalments): s80(1)(a) FLA
- Periodic payments (weekly, monthly, yearly or other): s80(1)(b) FLA
- Payment to a third party (eg mortgage repayments): s80(1)(c) FLA
does court have the right to order an immediate maintenance?
yes, under s77 FLA
Where, in proceedings with respect to the
maintenance of a party to a marriage, it appears to
the court that the party is in immediate need of
financial assistance, but it is not practicable in the
circumstances to determine immediately what
order, if any, should be made, the court may order
the payment, pending the disposal of
the proceedings, of such periodic sum or other sums
as the court considers reasonable.
