former spouses or partners have a duty to support each other
The Family Law Act 1975 mandates that spouses or partners have a duty to support and maintain each other even after a separation or divorce. The support is referred to as spousal maintenance which is on-going financial support from a former spouse. The extent of the spousal maintenance depends on the following factors:
- Applicant spouse is unable to adequately provide for his own reasonable needs; and
- The other spouse has the capacity to provide.
Spousal maintenance is not automatic. It needs to be sought and applied for. It is usually part of a general financial settlement. Former spouses or partners are encouraged to reach settlements outside the court. Once an agreement is finalized the parties can apply to the court for a spousal maintenance order based on their private agreement.
If the spousal maintenance application is filed with the Family Court or the Federal Circuit Court, parties need to undergo pre-action procedures such as the dispute resolution. However, if there is child abuse or violence in the family parties are exempted from complying with the pre-action procedures. Former spouses must also remember that an application for spousal maintenance can only be made 12 months after the divorce becomes final. Beyond that period, an applicant would need the permission of the court which is not always granted.
In deciding financial disputes after a divorce, courts are guided by Sections 79(4) and 75(2) of the Family Law Act 1975. The judge will endeavour to decide on what is fair and equitable for both parties and only after taking into account the following:
Income, property, debts and financial resources of both spouses;
- Their ages and health;
- Ability to earn and whether this has been affected by the marriage;
- Suitable standard of living;
- Who has the primary care of the children.
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Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.