TOPIC 9: SPOUSAL MAINTENANCE
Monahan/Young, Chapter 8
Dickey, Chapters 24 - 26
Parkinson and Behrens, Part D Chapter 13
Cases marked with an * are particularly significant.
Issues:
In this topic we consider the specific provisions in Part VIII of the Family Law Act 1975 (Cth) in relation to the conditional right of spousal maintenance. By contrast we will consider the lack of a broad right for maintenance for de facto couples.
Desired Outcomes:
An appreciation and understanding of the concept that spouses (in a marriage relationship) have conditional rights and obligations to support one another financially during and following the breakdown of their relationship. In addition, an understanding that some specific provisions also exist in relation to the maintenance of de facto couples (in limited circumstances) and the liability of a father of a child to contribute to the birth-related expenses of the mother in circumstances where the father is not married to the mother.
1. SPOUSAL MAINTENANCE UNDER THE FAMILY LAW ACT 1975 (Part VIII ss 71 ff)
There are 3 three types of spousal maintenance orders available under the Family law Act:
· urgent maintenance pursuant to s 77 – where there is immediate need
· interim maintenance where the court is asked to exercise the jurisdiction and power in ss72,74,75(2) and 80(1)(h) making an order pending the disposal of proceedings or until further; and
· final maintenance where the court is asked to exercise the jurisdiction and power in ss72,74,75(2) and 80(1)(h) making a permanent order.
· Note also s77A in relation to specification of maintenance component.
(a) Spousal Liability
· ‘party to a marriage’: s 71
· right of support: s 72
· payer: ‘reasonably able’ to support payee (ie has the means)
· payee: unable to support him/herself adequately [by reason of (a)-(c)] (ie has the need)
- care of children
- age etc for gainful employment
- ‘any other adequate reason’
(b) Courts power to enforce liability
· discretionary power: s 74
· ‘proper order’
· subject to examination of the so-called s 75(2) factors
· also note s 80
(c) Relevant Considerations
· s 75(1) ‘shall’ consider … the s 75(2) ‘matters’:
a. age and health
b. income, property, financial resources, employment capacity
c. care of children
d. ‘commitments’
e. responsibility to support third party
f. eligibility for pension, super etc
g. reasonable standard of living
h. education/training opportunity (there is no paragraph i)
ha. effect on debt recovery
j. extend applicant contributed to income etc of the other party
k. duration of marriage
l. need to protect ‘role of parent’
m. financial circumstances of partner
n. terms of s 79 order
na. child support assessment
o. ‘any other fact or circumstance’
p. the terms of any financial agreement that is binding on the parties
· note s 75(3): disregard social security entitlement
(d) Urgent Orders – s 77
§ Immediate need: s 77
§ dealt with in a very summary way
§ without examination of the parties
§ on such evidence as is available
Williamson and Williamson (1978) Fogarty J said at 77,650 that the application is determined “...on a rather pragmatic basis without any real hearing upon the merits” Chapman and Chapman (1979) Fogarty J at 78,570 said that there are somewhat “ad hoc procedures” necessarily involved
Ashton and Ashton (1982) FLC 91-285 Nygh J.said ..”Section 77 serves the purpose of an order being made where the Court is unable to determine immediately what order should be made”.
(e) Specification in Orders
· specify maintenance component: s 77A
(f) General Powers of the Court
· ‘menu’ of powers: s 80(1)
a. lump sum
b. periodic sum
ba. transfer property
c. secured sum
d. order execution of document
e. trustees
f. direct payments
h. permanent or fixed orders
i. impose term and conditions
j. make an order by consent
k. a justice order
l. before or after a decree
· also note ss 80(2), 80(3)
(g) Cessation of Maintenance Liability (refer s 82)
· two situations: death or remarriage of beneficial spouse
(h) Modification of Order (refer s 83)
· discharge, suspend, revive or vary
- change of circumstances
- cost of living change
- consent order not proper
- material fact(s) withheld
(i) Financial Agreements
· historically void but note there is a right to sue: s 119
· 'maintenance agreement': s 4(1) (ie in writing; may canvass spousal maintenance and property etc)
· ‘s 86 agreement’ - registered only (and see old O 26 r1 Family Law Rules)
· ‘s 87 agreement’ - approved by court but note s 87A and s 87(4A)
· but now must use a 'financial agreement' see Family Law Amendment Act 2000 (refer Topic 6) but NOTE maintenance component in a financial agreement will not be valid if at the time it was entered into the payee was unable to support him/herself without an income tested pension or benefit.
Summary of principles
· s. 74 empowers the Court to make aspousal maintenanceorder
· s.72 delineates the circumstances in which that power may be exercised.
· applicant must satisfy the threshold tests demonstrating an inability to support
him/herself adequately, and establish the capacity of the other spouse
to pay maintenance.
· under s 74 the Court must have regard to relevant sub-sections of s 75(2)
· must disregard any entitlement to an income tested pension or benefit (s 75(3)).
· under s 80 can order payment of periodical or lump sum maintenance.
· ceases on the death of either party, and on remarriage of the payee except in special
circumstances.
· s 83 allows the court to discharge, suspend, or revive wholly or in part an order, or to vary an order so as to increase or decrease the sum payable if certain factors in s 83(2) are satisfied
· court must have regard to the terms of a property order made or proposed to be made under s 79: see Bevan v Bevan (1995);
· different approaches in the cases about the requirement for a spouse to apply his or her capital to meet living expenses rather than such needs being met by a spousal maintenance order: see W & W (1997); Bevan & Bevan at 81,980
· If application for property settlement and spousal maintenance both on foot, court must determine application for property settlement first because that latter exercise establishes the background against which s. 74 must operate, that is, the financial circumstances of the parties. The result of the s. 79 order may be such that the applicant for maintenance can no longer be described as being “unable to support himself or herself adequately” because he or she may have sufficient assets which, with or without income arising from the investment or use of those assets, will provide an adequate level of support. It also defines the other party's capacity to meet any order: Clauson & Clauson (1995)
· necessary to determine the issue of periodic maintenance first because this type of lump sum maintenance is the capitalization of that conclusion
Williamson and Williamson (1978) FLC 90-505
Chapman and Chapman (1979) FLC 90-671
Ashton and Ashton (1982) FLC 91-285
Clauson and Clauson [1995] FLC 92-595
Bevan and Bevan [1995] FLC 92-600
Mitchell and Mitchell [1995] FLC 92-601
W & W (1997) FLC 92-72
DJM v JLM [1998] FLC 92-816
2. CHILD-BEARING EXPENSES UNDER THE FAMILY LAW ACT 1975
(a) Liability of father to contribute if not married to mother
· Part VII Division 8 Subdivision B
· reasonable expenses: s 67B
(b) Who may institute proceedings
· birth mother: s 67F
(c) Court’s power
· as it thinks ‘proper’: s 67D, 67E
(d) Other matters
· time limits: s 67G
· urgent order: s 67E
Impact of ‘Baby bonus’ (maternity payment) (2004+)?
3. MAINTENANCE UNDER THE PROPERTY (RELATIONSHIPS) ACT 1984 (NSW)
· no common law rights
(a) Jurisdictional requirements
· definitions: ss 3-5
· relevant courts: s 9, 10
· Part III ‘hurdles’
- residence: s 15
- two-year relationship: s 17
- two-year time limit: s 18
(b) No general right to maintenance
· prohibition: s 26 (but subject to s 27)
(c) Court’s power
· limited rights: s 27
- child care: s 27(1)(a) (but note age limits)
- education/training (rehabilitative): s 27(1)(b)
(d) Relevant considerations
· five matters: s 27(2)(a) –(e)
a. income etc
b. needs and obligations
c. responsibilities
d. property order
e. child maintenance
Note: 27(3)
· interim maintenance: s 28
(e) Duration and Cessation of an Order
· Effect of marriage or new relationship?
- no application possible if applicant has re-partnered or married: s 29
- see generally ss 30-34:
· child care maintenance ceases when child turns 12 or payee ceases to be the carer: ss 30, 33
· rehabilitative maintenance ceases 3 years after order OR 4 years after relationship ends whichever is shorter: s 30
· either order ceases on death or either party or on marriage of payee: s 32
· arrears not effected!
(f) Modification of order
· refer s 35
Todoric v Todoric [1990] DFC 95-096
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