Maintenance for de facto partners

De facto spouse maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to support themselves adequately.

The Family Court or Federal Circuit Court can deal with spouse maintenance applications. 

If you are seeking de facto spouse maintenance, the court may make any order for spouse maintenance that it considers “proper” as outlined in sub-sections 90SF(3) of the FLA.  

What does a court consider?
Ultimately there are three limbs to the test for spousal maintenance.  

The three parts to the test are as follows:

• Whether or not the person applying for the maintenance is exercising, to a reasonable extent, their ability to support themselves;
• Whether or not the person applying for maintenance after exercising their ability to support themselves  has a reasonable financial need; and
• Whether or not the person that is being asked to provide the maintenance has the financial capacity to do so, having regard to their own commitments and standard of living which is reasonable in all of the circumstances.  

Spousal maintenance can be made payable for a specified period such as to allow a person to complete a course of education, or up until the children reach school age, or maybe payable indefinitely until varied by subsequent court order. 

The court has the power to vary any existing maintenance order provided there has been a significant change in circumstances since the making of the order.  Such variations may be to increase, decrease or cease future payments.

Spousal maintenance can also be payable on an interim basis up until final determination of the matter.  Such orders are based upon the same legal criteria as final payments but are more arbitrary in their making because of the limited way in which evidence is available to the Court on an interim hearing.  

In practical terms, such orders for interim spousal maintenance are made on the basis of needs and maintaining the status quo of the parties up until a final determination. 

Parties can contract out of spousal maintenance obligations by signing a financial agreement.  If you are likely to be involved in court proceedings or in a legal dispute, you should get advice from a family law lawyer.