The payment of maintenance has become less common because generally, people are more likely to be able to support themselves adequately, particularly following a property settlement.
Child maintenance orders are particularly uncommon because support of children is provided by way of child support. However, an order can be made for child maintenance if it is necessary to enable the child to complete his or her education, or because of a mental or physical disability of the child.
An order for spousal maintenance can be made if the court is satisfied that:
- one person is reasonably able to support the other, and
- the other person is unable to support themselves adequately.
A person may need maintenance and the quantum of their need may vary for a number of reasons, including but not limited to:
- care of a child of the relationship under the age of 18;
- age and state of health;
- physical or mental incapacity for appropriate gainful employment;
- responsibilities to support another person or child;
- the need to achieve a reasonable standard of living in the circumstances;
- allowing re-education or training to increase an earning capacity;
- the financial circumstances of a new relationship where parties are living together;
- the length of the relationship and the effect of that on an earning capacity; and
- the need to protect one party’s desire to continue their role as parent.
Usually, the court will consider whether maintenance is appropriate following the determination of what each party will receive from a property settlement. If you consider you may be entitled to maintenance, or if someone has made an application against you, please contact us for further advice as limitation periods apply to your right to apply to the Family Court and Federal Circuit Court.
An application for maintenance must be made to the court within 12 months following divorce, or within two years from the breakdown of a de facto relationship.
If you are in a de facto relationship, different threshold issues will be considered to determine whether the Court has power to make an order for spousal maintenance.
If you entered into a Binding Financial Agreement with your partner, you may be prevented by the terms of that Agreement from seeking a maintenance order from the Court.
Information:
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