FAMILY LAW TOPIC 9:
SPOUSAL MAINTENANCE
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SPOUSAL MAINTENANCE
Preliminary Matters
Overlap between child maintenance and
spousal maintenance
- see Redman [1987] FLC 91-805
ecclesiastical courts
distinguishing alimony from maintenance
statutory relief
 Family Law Act 1975
 Property (Relationships) Act 1984
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(1) SPOUSAL MAINTENANCE UNDER THE FAMILY
LAW ACT 1975
Part VIII ss 71-90L
(a)
Spousal Liability
‘party to a marriage’: s 71
(conditional) right of support: s 72
payer spouse: ‘reasonably able’ to support
payee spouse (ie has the means)
payee spouse: unable to support
him/herself adequately (by reason of (a)-(c)]
[ie has the need)
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(a) Spousal Liability
Three categories in s 72:
 care of children
 age etc for gainful employment
 ‘any other adequate reason’
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(1) SPOUSAL MAINTENANCE UNDER THE FAMILY
LAW ACT 1975
(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
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(c) Relevant Considerations
section 75(1) ‘shall’
section 75(2) ‘matters’:
a. age & health
b. income, property, financial resources,
employment capacity
c. care of children
d. ‘commitments’
e. responsibility to support 3rd party
f. eligibility for pension, super etc
g. reasonable standard of living
h. education/training opportunity
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ha. effect on debt recovery
j. extent 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. terms of any binding financial agreement
note s 75(3) disregard social security
also note effect of s 75(2)(o)
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(1) SPOUSAL MAINTENANCE UNDER THE FAMILY
LAW ACT 1975
(d) Urgent Orders
Immediate need: s 77
[e] Specification in Orders
specify maintenance component: s 77A
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(f) General Powers of the Court
‘menu’: s 80(1) - also note ss 80(2)-(3)
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
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(g) Cessation of Maintenance Liability
refer s 82
two situations
 death
 remarriage of beneficial spouse
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(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
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(i) Maintenance Agreement
historically void
right to sue: s 119
definition: s 4(1)
‘s 86 agreement’
registered only
see (old rule O 26 r 1)
‘s 87 agreement’
approved by court
note s 87A
also note s 87(4A)
**now see FLA Pt VIIIA financial agreements
note s 90F(1A) re maintenance and need for
income-tested pension
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(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 Subdiv B
reasonable expenses: s 67B
(b) Who may institute proceedings
birth mother: s 67F
(c) Court’s power
as it thinks ‘proper’: s 67D
(d) Other matters
time limits: s 67G
urgent order: s 67E
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(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
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(b) No general right to maintenance
prohibition: s 26
(c) Court’s power
limited rights: s 27
child care: s 27(1)(a)
education/training (rehabilitative): s 27(1)(b)
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(d) Relevant considerations
five matters: s 27(2)
a. income etc
b. needs a d obligations
c. responsibilities
d. property order
e. child maintenance
n
Interim maintenance: s 28
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(e) Duration and Cessation of an Order
Effect of marriage or new r’ship?
- no application possible if applicant has repartnered 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 r’ship ends
whichever is shorter: s 30
either order ceases on death or either party
or on marriage of payee: s 32
arrears not effected!
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(f) Modification of order
refer s 35
Final Note: Reference of powers to C’wealth
Family Law Amendment (De Facto Financial
Matters and Other Measures) Bill 2008 (Cth)
s 4AA definition + s 90SB (2 year rule)
s 90SE maintenance power = FLA s 74
s 90SS general powers = FLA s 80
s 90SF(3) considerations = FLA s 75(2)
s 90SI modification = FLA s 83
s 90SJ cessation (death and marriage?)
ss 90UA-UD financial agreements = FLA s
90A-D
s 90UI maintenance and income-tested
pensions = FLA 90F(1A)
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