Can you get urgent spousal maintenance?
Spousal maintenance is financial support paid by one party to a marriage or de facto relationship to the other in circumstances where they are unable to adequately support themselves. If a person cannot meet their own reasonable expenses from their own income, then the other party has a duty to support and maintain them if they can afford to do so. Depending on your situation, you can get urgent spousal maintence.
The following circumstances give rise to spousal maintenance:
- Having care and control of a child of the relationship;
- Being incapable (by age, physical or mental incapacity) to gain appropriate employment;
- For any other adequate reason, having regard to relevant factors in section 72(2) of the Family Law Act 1975 (Cth) (for married couples) or section 90SF (for de facto couples).
The payments received as spousal maintenance may be periodic (for example, $200 per week) or lump sum (for example, a one-off payment of $20,000), or a combination of both.
Spousal maintenance is generally calculated by determining what the shortfall in the applicant’s financial circumstances is, being their total expenses less their total income. Parties may also require lump-sum payments to meet the costs of medical procedures or education costs.
Time limits
If you were married, then you must make an application for spousal maintenance within 12 months of the divorce becoming final.
If you were in a de facto relationship, then you must make an application for spousal maintenance within 2 years of the relationship breaking down.
If you apply for spousal maintenance outside of these time limits, you will require leave of the Court which will only be granted in limited circumstances.
If you have previously had an order for spousal maintenance, then the time limits do not apply.
Urgent spousal maintenance
Pursuant to section 77 of the Family Law Act (1975 (Cth), parties may apply to the Court for an urgent spousal maintenance application if they are in immediate need of financial assistance. Any orders made, usually at the first Court hearing, are likely to be in place only until each party has had the opportunity to put forward their evidence.
When the need for spousal maintenance is urgent, the Court is authorised to make orders on the evidence available to them in the absence of the other party (known as ex parte).
While government benefits and pensions are usually not included as income for the purposes of spousal maintenance or property proceedings in general, the Court may consider them in the evaluation of immediate need for urgent spousal maintenance applications.
Urgent spousal maintenance – Case Study
Hayson & Hayson (1987)
- In this case, the Wife applied for spousal maintenance to assist her in paying for a lease agreement that she had entered into and could not afford, so that she could be closer to the Husband’s residence and have the children stay with her overnight. The Husband had been making adequate spousal maintenance payments voluntarily.
- The Court held that this was not an immediate need to justify her application for urgent financial assistance.
Milano & Nolan (2018)
- In this case, the Court held that there was insufficient evidence to support weekly spousal maintenance as the Applicant received Centrelink payments.
- The Court did award lump-sum payments to assist the Applicant with urgent medical procedures and bills.
If you would like more information in relation to spousal maintenance, contact our team by phone on (03) 9793 7888 or by email at reception@justfamilylaw.com.au to make an appointment with one of our family law solicitors.