In the intricate web of family and financial law, the intersection of bankruptcy and spousal maintenance or child support obligations raises a myriad of complexities. In Australia, while a person’s financial state might significantly change due to bankruptcy, their familial duties—especially those towards their children—do not simply evaporate. This article explores the implications of bankruptcy on spousal maintenance and child support obligations, shedding light on the legal landscape surrounding this often contentious topic.
Bankruptcy is a legal process in Australia where individuals who cannot pay their debts give up their assets and control of their finances, either by choice or by a creditor's request, in exchange for protection from legal action. While it offers a fresh start to the debtor, it also has repercussions on their financial responsibilities.
a. Existing Maintenance Agreements: If a court has ordered a person to pay spousal maintenance and subsequently become bankrupt, the bankruptcy does not erase this obligation. However, the spousal maintenance debt is typically treated as a 'provable debt,' which means that it gets included in the bankruptcy and may be paid out of the divisible assets of the bankrupt estate, if any.
For future applications for spousal maintenance, bankruptcy can impact the assessment of the payer's ability to provide support, potentially leading to a reduced amount or changed terms.
a. Continuation of Obligation: Unlike many other debts, child support obligations are not erased or reduced by bankruptcy. The fundamental principle underpinning this is the paramountcy of a child's well-being. As per the Child Support (Assessment) Act 1989, a parent's primary duty is to support their child, regardless of bankruptcy.
b. Arrears and Child Support: Any arrears on child support at the time of bankruptcy will be considered as 'non-provable' debts. This means they are not extinguished by bankruptcy, and the individual remains liable to pay them even after the bankruptcy period ends.
c. Collection and Enforcement: The Department of Human Services can continue to collect child support payments and enforce any arrears during bankruptcy. They might use measures like garnishing wages or seizing tax refunds.
When bankruptcy and family obligations overlap, it's essential for the individuals involved to:
Engage Legal Counsel: Engaging with a lawyer who is experienced in both family and bankruptcy law can provide clarity and guidance during challenging times.
Bankruptcy in Australia carries implications that reverberate across various spheres of an individual's life, including their obligations towards spousal maintenance and child support. While bankruptcy offers a financial reset, familial duties—particularly those to children—remain steadfast. It underscores the legal system's commitment to ensuring children's welfare and maintaining the sanctity of familial responsibilities, irrespective of financial adversities.