Spousal maintenance is financial support payable by a party to a marriage to the other party, in circumstances where the other party is unable to adequately support himself or herself following separation.
Spousal maintenance should not be confused with de facto maintenance (financial support payable for maintenance of a de facto partner) and child maintenance (financial support payable for maintenance of a child of the marriage/relationship).
The right to spousal maintenance is recognised both in statue law and common law in Australia.
Statue law
Sections 72(1), 74(1) and 75(2) of the Family Law Act 1975 (the Act) are the relevant provisions dealing with interim spousal maintenance whereas section 77 of the Act contains provision to deal with an urgent spousal maintenance.
Section 72(1) of the Act provides:
A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or (c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2).
The above is a threshold requirement which is two-fold, firstly the applicant needs to satisfy the court that that he or she is ‘unable to support himself or herself adequately’ and secondly ‘the respondent is ‘reasonably able to do so’ and has the capacity to pay spousal maintenance having regard to the matters referred to in section 75(2) of the Act (section 75(2) factors).
Once the threshold requirements are met, the court may make such orders as it considers proper for the provision of spousal maintenance pursuant to section 74(1) of the Act having regard to section 75(2) factors below:
- Age and health of the parties.
- Duration of the marriage.
- Income, property, and financial resources of the parties.
- Capacity to work.
- Parenting arrangement and child support.
- Financial commitments of the parties to support themselves or any other person.
- Eligibility for a pension, allowance or benefit and terms of any BFA or property orders.
- Standard of living and disparity in future earning capacity.
Section 77 of the Act provides:
Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.
The applicant needs to satisfy the court that he or she is in ‘immediate need of financial assistance’ and does not have the money to pay for his or her immediate needs including, but not limited to, food and housing. Urgent spousal maintenance applications are dealt with immediately by the court without ascertaining the financial position of the parties in the first instant so as to provide immediate relief to the applicant to pay for his or her basic needs.
The court may order interim or urgent spousal maintenance payment, by way of a lump sum payment or a periodic payment, such as weekly or monthly payments pursuant to section 80 (1) (a) & (b) of the Act.
Common law
Harman J in Re Borthwick (deceased); Borthwick v Beauvais [1949] CH 395) held:
Maintenance does not only mean the food [a husband or] [a wife] puts in [his or] her mouth, it means the clothes on [his or] her back, the house in which [he or] she lives, and the money which [he or] she has to have in [his or] her pocket….Maintenance cannot mean only mere subsistence.
The Full Court held in Bevan (1995) FLC 92-600 that the law relating to an award of spousal maintenance requires: a threshold finding under s 72; consideration of ss 74 and 75(2); there is no fettering principle that the pre-separation standard of living must automatically be awarded where the respondent’s means permit; and discretion should be exercised in accordance with s 74, “reasonableness in the circumstances” being the guiding principle.
In Saxena and Saxena [2006] FLC 93-268, Coleman J explained at [39] that in determining whether to make an order for spousal maintenance, the Court should follow a four-step process:
- Can the applicant support themselves adequately?
- If no, what are the applicant’s reasonable needs?
- What capacity does the respondent have to meet those needs?
- What order is reasonable, having regard to section 75(2) of the Act.
The test of ability to support is whether the spouse is in a position to finance themself from their own resources (In the Marriage of Eliades [1981] FLC 91-022).
The word ‘adequately’ is not to be determined according to any fixed or absolute standard but having regard to the matters referred to in section 75(2) of the Act (Mitchell and Mitchell (1995) FLC 92,601 at 81,995).
The applicant carries the onus of satisfying the Court on the balance of probabilities that he or she has satisfied the gateway requirement of section 72 (1) of the Act (Hall and Hall [2016] HCA 23).
Some spousal maintenance cases in Australia
Middleton J in Powell & Powell [2022] FedCFamC2F 67, held at 128:
Having regard to the state of the wife’s evidence in relation to her reasonable needs and doing the best I can to assess those needs, with reference mainly to her financial statement, I am satisfied that it is a proper exercise of my discretion to order that the husband pay the amount of $300 per week to the wife by way of spousal maintenance. I am also satisfied that the payment of spousal maintenance should cease either upon the wife taking up full-time employment or the expiration of three years from the date of this order.
Campton J in Hofman & McBride [2022] FedCFamC1F 242, held at 237:
In the circumstances I am not satisfied that the husband has discharged the onus so as to establish on the evidence threshold requirement identified in s 72(1) of the Act. His application for periodic spouse maintenance will be dismissed.
Altobelli J in Rasheem & Rasheem [2022] FedCFamC1F 248, held 28:
For present purposes, the Court is amply satisfied that the … has the capacity to make a higher periodical spousal maintenance payment given the evidence presented before this Court. Accordingly, the Court … varies the order for spousal maintenance made by increasing it from $700 per week to $820 per week.
Beckhouse J in Wadhams & Wadhams [2021] FCCA 2173, held at 117:
Having looked at the husband’s financial position, … he could afford $2,500 as a one-off lump sum spousal maintenance amount in order to ensure that the wife is in a position to register a motor vehicle and undertake TAFE courses so that she can re-establish herself.
If you have concerns in respect to your spousal maintenance entitlement under the Family Law Act 1975, then please feel free to contact Longton Legal for an obligation free discussion.
Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to change. You should seek independent legal advice before embarking upon any course of action.
