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Communtity Law Manual | Relationships & break-ups | “Maintenance”: Financial support from your ex-partner

“Maintenance”: Financial support from your ex-partner

Overview

When a relationship ends, the law encourages the parties to become financially independent of each other as soon as possible. In some situations, however, one spouse or partner may be required to pay maintenance to the other to support them for a period.

What is maintenance?

Family Proceedings Act 1980, s 2

Maintenance is defined as “the provision of money, property and services”.

Maintenance during or after the end of a marriage or civil union

Family Proceedings Act 1980, ss 63, 64

During a marriage or civil union, during separation, and for a reasonable period after a marriage or civil union is dissolved, a spouse or partner (the maintenance payer) is liable to maintain the other party (the claimant) only to the extent necessary to meet the claimant’s reasonable needs if the claimant cannot practicably meet all or part of those needs because of any of the following:

  • the claimant’s ability to become self-supporting, having regard to:
    • the division of functions within the relationship when the parties lived together
    • the likely earning capacity of each party
    • any other relevant circumstances
  • the care arrangements for any minor or dependent children of the relationship
  • the standard of living of the parties while they lived together
  • the fact that the claimant is undertaking a reasonable period of education or training to increase their earning capacity or to reduce or eliminate the need for maintenance, and it would be unfair for the claimant to have to meet all their reasonable needs immediately because of:
    • the effects of the division of functions within the relationship on the claimant’s earning potential, or
    • the effects of childcare arrangements on the claimant’s earning potential, or
    • the claimant having previously maintained the maintenance payer, wholly or partly, during a period of education or training.

Maintenance after the end of a de facto relationship

Family Proceedings Act 1980, ss 64, 70B

The responsibilities and criteria for maintaining a de facto partner are the same as those set out above for a spouse or civil union partner, except the responsibility is to maintain a de facto partner at the end of the relationship only, not during the relationship.

Family Proceedings Act 1980, s 70B

Note: For the purposes of maintenance, “de facto relationship” has the same meaning as in section 2 of the Property (Relationships) Act 1976.

In addition, where the de facto relationship has lasted less than three years, a maintenance order cannot be made unless:

  • there is a child of the de facto relationship, or
  • the de facto partner has made a substantial contribution to the de facto relationship, and
  • the court is satisfied that not making the order would result in serious injustice to the claimant partner.
No maintenance if “repugnant to justice”

Family Proceedings Act 1980, s 66

The judge may decide not to order any maintenance if the person claiming it has acted particularly badly so that it would be wrong (the law uses the phrase “repugnant to justice”) to order it.

Temporary (“interim”) maintenance

Family Proceedings Act 1980, s 82

You can apply for interim maintenance for up to six months to cover your reasonable needs, until the Family Court makes a decision about your application for ongoing maintenance. The process for getting interim maintenance can be relatively fast and it can be a useful stop-gap measure.

Family Proceedings Act 1980, s 64A

Generally maintenance will only be granted for a time period that is reasonable in the circumstances of the particular case. Within that time period, you are expected to assume responsibility for meeting your own needs.

In some situations, maintenance may continue to be paid if it is unreasonable to require the claimant to get by without maintenance from the maintenance payer and it is reasonable to require the maintenance payer to provide maintenance to the claimant because of any of the following:

  • the ages of the spouses or partners
  • the length of the relationship
  • the claimant’s ability to become self-supporting, having regard to:
    • the division of functions within the relationship when the parties lived together
    • the likely earning capacity of each party
    • the care arrangements for any minor or dependent children of the relationship
    • any other relevant circumstances.
What happens if the maintenance payer gets a new partner?

Family Proceedings Act 1980, s 70A

Any maintenance obligations will end if the claimant enters a new marriage, civil union or de facto relationship with someone else.

How much maintenance will be paid?

Family Proceedings Act 1980, ss 65, 66

The amount of maintenance payable will depend on:

  • the means of each party, including potential earning capacity and any means gained from relationship property division
  • the reasonable needs of each party, keeping in mind the standard of living of the parties when they were living together
  • whether the maintenance payer is supporting any other person
  • the financial and other responsibilities of each party
  • any other relevant circumstances (for example, any conduct of the claimant which is an attempt to prolong their inability to meet their own reasonable needs).

In what form will maintenance be paid?

Family Proceedings Act 1980, ss 69, 70

The court can make an order requiring maintenance to be paid in the form of a lump sum or periodic payments.

Can a person get maintenance and a welfare benefit?

Family Proceedings Act 1980, s 62; Social Security Act 1964, s 84A

The fact that the claimant is receiving a benefit from Work and Income does not take away or limit the liability of the maintenance payer to pay maintenance. The amount of benefit the applicant is receiving may be reduced if maintenance above a certain level is paid.

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