Spousal maintenance can be granted to increase applicant’s earning capacity, to enable the applicant to take course of education, training or to start a new business.
Spousal maintenance is a benefit that is granted by the Family Law Act 1975 to spouses who, after the divorce or breakdown of the de facto relationship, cannot financially support themselves. It is not a right that can easily be claimed by former spouses or de facto partners. Rather, spousal maintenance is granted to spouses only after proving that they need it and their former spouses or partners can afford to give it.
Section 74 and 75 of the Family Law Act provides for spouse maintenance and the factors considered by the Court whether to grant an application for spousal maintenance or not. One of the factors considered by the Court is whether the spousal maintenance amount considered would increase the applicant’s earning capacity and whether the maintenance will enable the applicant to take a course of education or training, or start a business.
Section 75(h) is applied in the case of a husband who was ordered by the Family Court to pay spouse maintenance while his wife retrains for a career change. The wife was formerly a legal secretary but she wanted to change career after the litigation that she went through with the separation. The Family Court found her change of career move to be not unreasonable.
The entitlement of a spouse or de facto partner would depend on the financial capability of the other party. Hence, it is not only the personal circumstances of the applicant that the court will be considering. The court will also be considering the age, health, income, property and financial resources of the party against whom spousal maintenance is being sought. In short, the court will be looking at the party’s capacity to pay.
The applicant must be able to prove to the satisfaction of the court that circumstances exist that he cannot adequately financially support himself. One significant factor that could be considered in favour of the applicant is how the duration of the marriage or relationship has affected the capability of the applicant to earn a sustainable income. Another factor that will be considered by the court is whether a child or children of the parties live with the applicant which could limit the earning capability of the applicant.
There are time constraints to follow in the filing of an application for spouse maintenance. For formerly married spouses the application must be filed within 12 months from the time the divorce became final while for de facto partners they must file their application within 2 years of the breakdown of the relationship.
Just like in a property settlement, parties to a spouse maintenance application are required to undergo mediation and conciliation conference. In fact, spouse maintenance may be one of the matters that could be agreed upon during property settlement negotiations.
An applicant who has already remarried will no longer be entitled to spousal maintenance. As for a former de facto partner who is in a new de facto relationship, the court will have regard to the financial circumstances of the new relationship and from there determine whether the applicant is still entitled to spousal maintenance.