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In property settlement matters some parties may be seeking that their partner makes a lump sum payment or for a particular period of time make ongoing payments by way of support. It is important to understand that even if you do not have children with your former partner, you still may be required to pay to them a sum of monies (either in a lump sum or ongoing), which is known as “Spousal Maintenance”.
Spousal Maintenance is financial support which is paid by one former partner to the other partner of a de facto relationship or a marriage which has broken down and the circumstances are that the other party is unable to financially support themselves since separation. The monies which are to be paid to your former partner is for the recipient party to apply this to the payment of their reasonable living expenses this can include rent, general household expenses, insurances etc.
It is a common question asked after the breakdown of a relationship why one party may need to financially support their former partner if the parties are no longer in a relationship, well in short under the Family Law Act 1975 a person may have a responsibility to financially assist their former de facto partner or spouse if that person is unable to meet their own living expenses. There is a duty to support and maintain each other (this works both ways), and this obligation may continue even after separation.
For a party to be successful in an application for Spousal Maintenance (or Orders seeking Spousal Maintenance) there are basically two limbs which must be satisfied by the Court.
Firstly, the Applicant (the person seeking Spousal Maintenance) must have a need and secondly, the respondent must have capacity to pay spousal maintenance, this means if the Respondent does not have financial capacity to make payments to the Applicant the Court will take this into consideration when considering the application for Spousal Maintenance.
When the Court is hearing an application or Orders for Spousal Maintenance there are a range of factors considered such as the age of the parties (this looks at how long each party has before retirement), the care of children (if any of the relationship) and the parties’ income and financial resources.
It is important to understand that there is a time limitation for a party to make a claim for Spousal Maintenance against the other party. If the parties were married this date is 12 months from the date that the divorce order takes effect and if you were a party to a de facto spouse, you have 24 months from the breakdown of your relationship.
Although there is a time limitation for a party to make an application seeking Spousal Maintenance, the Court has power to grant leave to the party who is making an application for spouse maintenance (married) or maintenance (de facto) out of time if the Court believes the Applicant has demonstrated hardship.
In practical terms this means, in some circumstances, it could be possible for a party to make an application for Spousal Maintenance even after the limitation period has elapsed and/or after property settlement has been finalized.
If you are considering separating from your partner or are in the process of separating and would like to discuss costs further, please telephone the Bris bane family lawyers team at James Noble Law and schedule a free 20-minute no-obligation consultation with one of our experienced family law solicitors today.
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