Under the Family Law Act, both spouses must support and maintain each other

Financial support for children and spouse is one of the processes that are common in Australia in which one or both of the spouses filed an application to the court after the spouses separated and decide to discontinue their marriage.

There are two kinds of financial support that are related to divorce. These are the child maintenance and the spousal maintenance under the Family Law Act 1975. Child support is also found in Child Support (Assessment) Act 1989. However, for purposes of this article, we will focus on the one that is provided under Family Law Act 1975.

Child Maintenance

In Australia, both parents are obligated by the law to support its children financially. The objective of the Family Law Act 1975 in providing maintenance for a child is to ensure that children receive a proper level of financial support from their parents.

This ensures that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents and that parents share equitably in support of their children. (Section 66B, Family Law Act 1975)

It is a right of every child to be supported financially by his or her parents. Child maintenance is a right under the law of a party in a divorce case to ask for financial support from the other party for their child or children. This is true even if the parents of the child had already separated because either by divorce order or by nullity of marriage.

Spousal Maintenance

If you do not have sufficient means to support yourself, you may ask for financial support from for former husband or wife. You may apply for a spouse maintenance order from a court for to be legally entitled to receive financial support from your former husband or wife. An application for spousal maintenance order is necessary because you still need to prove to the court that you do not have the financial capacity.

Under the law, a party to a marriage is liable to maintain the other party, to the extent that the other party is reasonably able to do so.

However, if and only if, that other party is unable to support herself or himself adequately whether because of having the care and control of a child of the marriage who has not attained the age of 18 years.

Another reason for age or physical or mental incapacity for appropriate gainful employment; or for any other adequate reason; (Section 72 (1), FLA)

Your right to receive spousal maintenance from your former husband or wife may still be exercised even if the marriage is already terminated or dissolved because of a divorce order or nullity of marriage.

Who may apply for financial support?

The law is specific to the proper person that may be allowed to apply for financial support for a child. Under the Family Law Act 1975, either or both of the child’s parent; or the child; or the grandparent of the child; or any other person concerned with the care, welfare or development of the child may apply for a child maintenance order.

If the child is under guardianship or in the care of a person under the child welfare law, only the following persons may be allowed to apply for support:
(a)The child; or
(b)A parent of the child who has the daily care of the child; or
(c)A relative of a child who has the daily care of the child; or
(d)A child welfare officer of the relevant State or Territory (Section 66F (2), FLA)

In the case of spouse maintenance, the spouse who has no means of support is the proper person to file an application for spouse maintenance.

Considerations in granting financial support

The amount of financial support that may be granted by the court depends on the several factors and personal circumstances of the one that is in need of financial support and the one who is obligated to give financial support. The court considers the financial capacity of both parties, the age, capacity for employment, the cost of living, and others that the court may deem proper.

An order of a court for financial support may be amended or changed if the personal circumstances of both parties also change. If the one obliged to give financial support loses his or her job, he may apply to the court to reduce the amount of support or even exempt him or her from giving financial support until he or she finds a new job.

This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice contact Christine Manolakos from CM Lawyers