The Family Law Act allows a party to a marriage or de facto relationship, to financially maintain the other party
Relationships that have come to an end, whether the parties were part of a marriage or a de facto coupling, are always difficult. Additionally, if there are further issues relating to finance, the situation can be even more fraught – especially if one of the parties is in a weaker economic position.
The Family Law Act (the Act) allows a party to a marriage or de facto relationship, to financially maintain the other party to the extent that they are reasonably able to do so if one of the parties cannot support him or herself adequately. The courts then can decide to issue a maintenance order however, the Act mandates that certain requirements must be met before an order can be issued.
In ss 72 and 75(2), relating to married couples, and ss 90SE and 90SF for parties who were involved in a de facto relationship outlines the requirements under the Act in which the Court may issue a maintenance order.
Looking towards s 72 of the Act as an example, the following considerations will be made by the Court when assessing the viability of issuing a maintenance order:
“A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only, if that other party is unable to support herself or himself adequately whether:
With the introduction of the 2008 amendments, de facto couples share the same substantial maintenance rights under ss 90SE and 90SF, and the Court will take into consideration the propriety of issuing a maintenance order in favour of one of the parties.
However, in order for a party to be considered for maintenance as a de facto, a person must meet the formal requirements under the Act before they are deemed to be eligible. To satisfy the Court that a person was part of a de facto relationship, the following considerations must be met in order for the relationship to gain recognition:
What considerations will the Court make if a de facto is seeking an order or declaration?
Conversely, if a party to the de facto relationship is seeking an order or declaration, then the Court will only do so under the following conditions:
If the parties to a de facto relationship meet the conditions as outlined under the Act, the Court will not consider whether the de facto relationship was a heterosexual, or same-sex coupling.
In determining whether a maintenance order should be issued, it must be demonstrated to the Court that the paying party is able to afford the costs associated with the issuing of the order. When making a decision, the Court will examine the living standards between the parties, and make an assessment on the paying party’s ability to financially support the other person.
The overarching aspect when making an assessment is one in which the comparative living standards between the parties is to be considered, which involves looking into the surrounding situation in relation to the parties, pre, and post-separation.
When applying for maintenance, a party who is seeking the order must do so within 12 months after the finalisation of the divorce for a married couple, or within two years of the ending of a de facto rrelationship.
Seeking a maintenance order is a complicated process, and it is always advisable that you seek help from a lawyer to ensure that you meet all the procedural requirements. An experienced lawyer can help you file an application, and assist you with any court appearances that may occur.