A recent development in de facto family law has seen an expansion of the eligibility of parties in Australia to spousal maintenance. Pursuant to the Family Law Amendment (De Facto Financial Matters and other measures) Act 2008 (Cth), a person of a de facto relationship that separated on or from 1 March 2009 may be entitled to receive spousal maintenance.
Spousal maintenance is predicated upon the minimisation of disparities between the earning capacities or incomes of parties in consideration of their respective circumstances and needs.
Payment of spousal maintenance may be a negotiated outcome. If an agreement is reached between parties, then it may be formalised by way of Consent Orders or through a financial agreement. However, if there is no agreement as to payment of spousal maintenance, an application may be made to the Family Law Courts for an order for spousal maintenance. In determining whether de facto spousal maintenance should be ordered, the court will primarily have regard to whether the applicant is unable to adequately support themselves due to having care of a child of the relationship, age, disability or any other adequate reason having regard to the provisions of the Family Law Act 1976 (Cth), and whether the other party has the financial capacity to meet their obligation to pay spousal maintenance if so ordered.
In determining what may be construed as “adequate", the Court will give consideration to a standard of living that is reasonable in all the circumstances. Here, reasonable would not necessarily mean the standard of living that the applicant led prior to the breakdown of the relationship. If an applicant is unable to adequately support themselves, they must have a present inability to do so.
The obligation to pay spousal maintenance may be discharged in various ways including through periodic and regular payments or by way of a lump sum payment, and may exist for different periods of time. Although spousal maintenance is generally intended to operate only for a short period of time following separation to enable applicants to get back on their feet, in certain circumstances, it may be appropriate that spousal maintenance be paid for a longer period of time. Payment of spousal maintenance may be tailored to end upon the occurrence of a specific event, for example, the commencement of a new and subsequent de facto relationship. Orders may also be varied or discharged upon application to the Court.
Orders for spousal maintenance may also take the following forms:
>> Right to sole occupation of a home or use of a vehicle;
>> Transfer of property; or
>> Secured by way of a charge on the other party’s asset.
In general however, courts may prefer that property adjustments may be made in compensation of economic disparities between parties to a de facto relationship, where possible, as an alternative to an order for spousal maintenance.