de facto entitlements

Spousal Maintenance

When a de facto relationship breaks down couples have what is called de facto entitlements. These de facto entitlements are similar to the rights & entitlements of married couples.

de facto entitlementsOne of the de facto entitlements separating couples have available to them is spousal maintenance which is essentially one party to the relationship providing the other with ongoing financial support while the de facto separation entitlements are being negotiated.

Spousal maintenance is not automatic and you need to apply to the Courts to make an order for it. The Court may elect to make an order for one party to the relationship to pay spousal maintenance to the other party in such circumstances as:

  • One partner (the applicant) can’t meet his or her own needs; and the other partner (the respondent) has the ability to pay.

Child support & spousal maintenance are two very different things & should not be confused. They are both part of a separating couples de facto entitlements. Child support is paid for the benefit of children of the relationship. Courts can order spousal maintenance be paid in addition to any orders for child support.

As stated earlier spousal maintenance is not an automatic part of a de facto property settlement, it must be ordered by the Courts and will only be granted is certain circumstances. These circumstances include:

  • One partner looks after young children of the relationship & can not readily work due to caring for young children.
  • One partner has not worked for many years and does not have the skills required to earn enough money to support themselves.
  • One partner is ill or unable to work due to a disability

In these instances the Courts see a disparity of income between the separating parties & may order spousal maintenance to be paid to one party.

One important point is that one party can not reduce their income for the purposes of avoiding having to pay spousal maintenance or limit their exposure to de facto relationship separation entitlements. The Courts view actual income & income earning capacity as two different things when determining a de facto property settlement. If a party is found to have limited their income or income earning capacity to avoid spousal maintenance obligations, the Courts may deem that party to earn a higher income or have a higher income earning capacity as a result of their actions.

When determining de facto relationship property rights and the amount of spousal maintenance to be awarded by a Court, the Courts will look at things like:

  • Standard of living
  • Income
  • Income earning capacity
  • Are there Children of the relationship

Spousal maintenance can be paid in a number of ways including periodic or regular payments or by a lump sum payment. Spousal maintenance can also be ordered by the Court, to be in place for a set period of time. Spousal maintenance is usually put in place for a short period of time following separation to enable an applicant to get back on their feet after a relationship breakdown. Spousal maintenance forms part of a de facto property settlement and in some circumstances Courts may order it to be paid to the Applicant party over a longer period of time.

Spousal maintenance is not an open ended de facto relationship separation entitlements. The Courts will order it be paid to one party and cease at a certain point in time. For example:

  • Settlement is finalized
  • The Applicant completes training or develops new skills in order to gain employment.
  • The Applicant becomes employed.
  • A new de facto relationship commences

Calculating Spousal maintenance:

De facto relationship property rights dictate that the financial position of the person applying for Spousal Maintenance (the applicant) will be reviewed by the Court. Of interest to the Court will be:

  • The income, expenses and liabilities of the applicant.
  • If the applicant has entered into a new de facto relationship and then the Court will also look at the financial arrangements between both of you and the financial circumstances of the new de facto relationship.
  • The Court will then consider the earning capacity of the person applying for the maintenance.

The “ability to earn” is paramount to the Court. While spousal maintenance can form part of de facto property settlement it is not automatic. There have been many cases where an applicant has been found to not be exercising their full income earning capacity and therefore denied spousal maintenance.

Once the Court has looked at the financial position of the applicant and their earning capacity, and decides they are eligible for Spousal maintenance, then the Court will investigate the capacity of the respondent (the former partner the applicant is seeking an order against) to pay the spousal maintenance.

The Court will look at the financial circumstances of the respondent, including: All expenses,

  • All assets owned by the respondent
  • All liabilities of the respondent.
  • Total income
  • Income earning capacity

Keep in mind, if the respondent in the de facto relationship separation entitlements matter is challenging the jurisdiction of the Court in essence alleging there was no de facto relationship, then the Court will be very restricted in what remedies it can grant until the jurisdiction issue is heard & decided.

Lump Sum Spousal Maintenance or Periodic Payments:

There are two ways to pay spousal maintenance, it can either be paid on a periodic basis or as a lump sum. All spousal maintenance payments form part of your de facto relationship separation entitlements. Periodic payments of spousal maintenance are simply regular installment amounts or payments.

Periodic payments of spousal maintenance are usually intended to be paid from the income of the respondent.

Some respondents in spousal maintenance applications have deliberately limited their financial position so it appears to the Court that they do not have the income to pay spousal maintenance. The Courts take a dim view of this behaviour. There have been cases where the Courts have ordered the sale of assets in the control of the respondent in order to allow them to pay spousal maintenance.

What If Your Financial Position Changes?

Once the Court orders either periodic or lump sum payment of spousal maintenance, either party can apply to change the order.

If the applicant in the spousal maintenance matter finds their financial position improves then the onus is on them to notify the Court of this change. The respondent in the matter who is paying the spousal maintenance may apply to the Court to either have the order discharged entirely or for the amount of the payments to be decreased.

What If Spousal Maintenance Payments Are Not Made?

Once a Court has made an Order for the payment of spousal maintenance that court order is enforceable. If the respondent stops making spousal maintenance payments the court has ordered, then you will need to go back to Court to seek that the Order be enforced.

The Court might look at whether they can order the respondents employer to deduct the amounts from their income and pay it directly to you instead.

When Does Periodic Spousal Maintenance End?

There is no one rule for when spousal maintenance payments will be ordered to end or stop. Each spousal maintenance matter needs to be decided on its own merits or facts. When deciding how long spousal maintenance might be payable, the Courts may consider the following:

  • The age of each of both parties
  • Whether a child or children are involved and if so, the level of care and supervision they require.
  • Whether one spouse is prevented from obtaining employment due to illness or disability.
  • More & more often the Courts have started limiting the length of time they expect Spousal Maintenance to be payable for.

In many cases the Courts will only order spousal maintenance to be paid for a certain period of time (e.g. 6 months, a year etc) by which time they consider the person receiving Spousal Maintenance should have taken steps to start supporting themselves.

Spousal Maintenance will usually end when either of the parties passes away or if the person receiving spousal maintenance remarries, unless a Court orders otherwise.

Remember, the information contained on the site does not constitute legal advice. If you think you need legal advice you should contact an Accredited Family Law Specialist.

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