A property settlement must be determined first before a final maintenance. This is because sometimes the property settlement would render a need for maintenance unnecessary or impracticable. There are instances when after the division of the properties a party receives substantial property such that maintenance is no longer needed. It can also happen that after the property settlement the payer is no longer able to afford payment of maintenance.
The case of Clauson and Clauson (1995) FLC 92-595 emphasizes that a property application must be determined first. This is because the court will then have to take into consideration the parties’ financial circumstances in accordance with the requirement under Section 74 of the Family Law Act 1975.
The Full Family Court in Mitchell and Mitchell (1995) FLC 96-201 utilized social science research in considering spouse maintenance. The Court took note of research that shows that “mothers who have the primary care of children drop out of the workforce and suffer financially – a situation which is exacerbated when a marriage breaks down.”
The Court also found that in more recent times there is a “significant gap between theory and reality for employment especially for people in middle age, lacking experience and confidence, and who have been out of the skilled work-force for many years, and in the context of current high unemployment.” The Court awarded maintenance to a 50 year old wife who was a registered nurse but has not worked for 27 years. Being out of the workforce for a long period of time, the Court found that it would be difficult for the wife to compete against younger and more qualified persons.