Is spousal maintenance ever really final?

1 August 2019

By Sherlene Heng

Parties to an application for spousal maintenance in Perth / Western Australia need to take note of this.

In 2019, the Federal Circuit Court of Australia made an order in the matter of Blevins & Blevins [2019] FCCA 1923 that leave was not necessary to make an Application for spousal maintenance, and considered it was appropriate to hear an Application for the Respondent to pay spousal maintenance.

The Application was made 22 years after the parties divorced and 20 years after final orders had been made for property settlement and periodic spousal maintenance (payable for 10 years). It also came 10 years after a further lump sum spousal maintenance order had been made. At the times both orders were made, it was deposed by the applicant that she was dependent on government assistance.

There is no pre calculated payment of an amount of maintenance in Australia. It is not like child support. A party seeking maintenance needs to confer with the other party, and if that fails, bring an Application to the Court seeking maintenance.

What does the legislation say?

(for the purposes of this article, all references are to ‘spouses’ and the Family Law Act 1975. There are similar provisions for de facto couples which are not specifically referred to here)

The law provides that a spouse is liable to maintain the other:

  1. To the extent that the spouse is reasonably able to do so;
  2. If, and only if, the other is unable to support himself/herself adequately; and
  3. Considering any other relevant matters as per Section 75(2) of the Act.

Point 2 can be broken down further:

  1. Can the applicant support themselves e.g. by their own income, financial resources; and
  2. Are the needs claimed reasonable?

An Application for maintenance needs to be made within 12 months of a divorce taking effect (section 44(3)) or within 2 years of the separation of a de facto couple, as leave of the Court is otherwise required. It is noted here that making an application for property settlement within this time is not sufficient; a specific application for maintenance must be made within that limitation period.

The Court has the power to vary a maintenance order pursuant to section 83. However, in the case of Blevins above, it was determined that there was no order ‘in force’ since the 2 previous orders had been fully complied with, and that this was a new application for maintenance.

Does leave need to be granted?

The question was therefore whether leave needed to be granted to make a new application for maintenance.

The Court has the power to grant leave to institute proceedings out of time if section 44(4) is satisfied; namely if hardship would be caused to the applicant or a child if leave were not granted OR at the end of the period within which the proceedings could have been instituted without leave i.e. prior to one year before the divorce order took effect or prior to 2 years of the separation of a de facto couple, the applicant would have been unable to support himself or herself without an income tested pension, allowance, or benefit.

The Court in Blevins considered that the first spousal maintenance order was an order previously made and made within time, and therefore that no leave was required to be obtained.

What does this mean for people entering into final orders?

  1. Where no orders are made for spousal maintenance at all (this includes at the end of a final hearing where orders may be made to dismiss an extant maintenance application) there is a possibility that an applicant can seek leave to make an application for maintenance in the future on the basis of hardship or if they required an income tested payment at the time the limitation period expired;
  2. Where orders are made for spousal maintenance on a final basis, there is still a possibility that an applicant can apply for further maintenance (provided they still satisfy the criteria)
  3. If entering into orders by consent, it is certainly still worth considering incorporating an order for spousal maintenance particularly where part of the property is attributable as maintenance pursuant to Section 77A of the Act. This may mean that if a subsequent application is made, the Court still has to review the maintenance already paid when making a determination.
  4. It is also noted that even though Section 82(4) of the Act provides that an order in relation to maintenance ceases when a party remarries (unless in special circumstances) it is silent as to what happens if the applicant enters a de facto relationship. The financial circumstances of the new partner will be a consideration under Section 75(2); however, it does not appear at this stage to be a bar to a maintenance application.

This may create uncertainty for parties.

Spousal maintenance applications can be expensive to make, and expensive to respond to.

Parties may wish to think about entering into a Binding Financial Agreement at the same time they enter into final orders for property settlement, to either pay a periodic or non-periodic sum of maintenance, or to pay no maintenance at all depending on what can be agreed between parties and the circumstances of their specific case. The Court’s jurisdiction to make a determination in relation to whether hardship will be caused to a party or a child is ousted by parties entering into a Financial Agreement.

However, it is important to note that the Court can still make an order in relation to maintenance if, when the Financial Agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance, or benefit (Section 90F).

It is important to consider what the circumstances of the party were at the time the Financial Agreement came into effect and what provisions are made to take into account section 90F.

We’re Here to Help

Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

All of the above matters are matters that we can discuss with you at O’Sullivan Davies to ensure that both parties can ensure they move forward into their financial future with as much certainty as possible. More information about our services can be found at our About Us page here.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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