If following separation, you are unable to meet your reasonable living expenses, you should consider making an application to the Court for spousal/de facto maintenance in addition to seeking orders for the division of the parties’ property pool.
Section 74 of the Family Law Act 1975 empowers the Court to make “such order as it considers proper for the provision of maintenance” in relation to a party to a marriage. Parties
to a de facto relationship, which has broken down are also covered by section 90SE of the Family Law Act 1975, which states that “After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship”.
It is worth noting the distinction between the rights to bring a maintenance application for parties to a marriage and parties to a de facto relationship.
Firstly, it is important to bear in mind the limitation period when bringing an application for spousal maintenance. A party to a marriage must bring such application within 12 months of the divorce becoming final, while a party to a de facto relationship must do this within 2 years of the breakdown of the relationship. Failure to make your spousal maintenance application within the required time period would normally preclude you from applying to the Court, unless exceptional circumstances apply and you are granted leave to apply out of time.
Furthermore, a party to a marriage would not be entitled to seek spousal maintenance if he or she remarries another person following divorce. However, this is not the case for de-facto relationships. If a party to a broken-down de-facto relationship commences a new de-facto relationship with another person, orders for maintenance can still be sought, however the court will consider the financial relationship and circumstances of your new de-facto partner when assessing your maintenance application.
Also, for de facto relationships specifically, the following additional requirements apply:
1) geographical requirements pursuant to section 90SD have to be satisfied meaning that :
a) That either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the order was made (the application time ); AND THAT EITHER - parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; OR - the applicant for the order made substantial contributions, in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); in one or more States or Territories that are participating jurisdictions at the application time;
OR that in the alternative:
b) That he parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
2) the Court also needs to be satisfied that AT LEAST ONE of the matters listed in section 90SB apply, meaning that the court needs to be satisfied that:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years OR
(b) that there is a child of the de facto relationship OR
(c) that the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
Accordingly, there may be circumstances which would allow a party to a marriage to make an application for spousal maintenance, which would otherwise be unavailable as an option in a de-facto relationship due to the above additional geographical restrictions or matters set out in section 90SB.
Just because you may satisfy all of the above requirements does not mean that a maintenance order will be made in your favour, it simply means you have the right to make such applications.
Grounds for Maintenance Application
The prospects of success
s of a maintenance applications depend on the following factors by applying the threshold test:
a) whether or not you can demonstrate that you are unable to meet your reasonable living expenses;
b) whether or not the other party has the capacity to pay maintenance to you;
The Full Court, citing Mitchell & Mitchell (1995) FLC 92-601, stated that
It is not necessary for an applicant for maintenance to use up all of his or her assets and capital in order to satisfy the requirements that he or she is unable to support himself or herself “adequately”.
Furthermore, as observed in Stein & Stein (2000) FLC 93-004:
In an application for spousal maintenance, it is necessary to distinguish between the expenses of the spouse seeking an order for spousal maintenance and the expenses of the children of the marriage or the relationship.
Maintenance applications are a complex area of law and it is important that you obtain comprehensive legal advice from an expert in this field before making a decision to seek orders for spousal or de facto maintenance. At Surge Legal we offer free initial consultation to provide you an assessment of your rights and options when dealing with family law property and parenting matters, including maintenance issues.