To obtain a court order for maintenance under the Family Law Act 1975 (Cth), the person applying for it will generally have to prove that he or she is unable to work and cannot support him or herself properly because of old age or sickness, the need to care for children or some other reason [see s 72(1) for married relationships and s 90SF(1)(b) for de facto relationships]. In addition, they will have to prove that their former partner is reasonably able to pay the maintenance [see ss 72(1) and 90SF(1)(a)].
In South Australia, changes to the Family Law Act 1975 (Cth) to enable a claim for maintenance between parties to de facto relationships (including same-sex de facto relationships), took effect on 1 July 2010.
In deciding whether to make a maintenance order the court is required to take into account the following factors [see s 75(2) for married relationships and s 90SF(3) for de facto relationships]:
- the age and state of health of each of the parties to the relationship
- their respective incomes, property and financial resources and their ability to obtain work
- whether either of them is caring for a child under the age of eighteen years
- their financial needs and obligations
- their eligibility for social security payments
- after separation, a standard of living that is reasonable in all the circumstances
- the extent to which the party seeking maintenance has contributed to the earning capacity or resources of the party from whom maintenance is sought
- the length of the relationship and the extent to which it has affected the earning capacity of the party seeking maintenance
- whether the payment of maintenance would increase the earning capacity of the party seeking it by, for example, allowing them to undertake a course of study or training
- the need to protect a parent who wishes to continue the role of parent
- the financial circumstances of cohabitation if the party seeking maintenance has commenced living with someone else
- the terms of any binding financial agreement or property settlement
- whether child support payments have been made or will have to be made in the future
- any other relevant factor.
How much an applicant will be entitled to receive in maintenance after considering these factors will depend upon the individual circumstances of the case. Where an applicant's capacity to earn has been reduced as a result of a long period out of the workforce during the relationship, they may be awarded maintenance to cover a period of retraining or job seeking. Where they cannot support themselves due to health problems, and the other party has the capacity to support them, maintenance may also be ordered. Maintenance is less likely with short marriages, or where each party has retained the capacity to earn a living.
Maintenance claims can be resolved separately or at the same time as a property settlement, either by financial agreement or court order. In making property settlement orders, it is usual for the court to specify whether any and what amount is paid as maintenance [see s 77A for married relationships and s 90SH for de facto relationships]. These orders bring claims for maintenance to an end.
A payment can be made in a lump sum, or by periodic payments. An order for periodic payments of maintenance can be registered for collection with the Department of Human Services - Child Support.
A maintenance order will generally cease either:
- upon a fixed event (such as the party in receipt of the maintenance obtaining work) or fixed date
- when it is discharged by the court during ongoing proceedings [see ss 83(1) and 90SI(1)(c)]
- upon the death of either party [see ss 82(1)-(3) and 90SI(1)-(3)], or
- upon the subsequent marriage of either party (unless the court makes a continuation order) [see ss 82(4) 90SJ(2)].
A continuation order may be made in (rare) cases, where, for example, a wife was formerly married to a wealthy man and subsequently marries a man in poor health or poor financial circumstances.
Time limits apply to maintenance claims. Legal advice should therefore be sought at the earliest opportunity.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.