Under the Family Law Act 1975 (Cth), when a relationship ends, a party has an obligation to financially assist their former partner if that person is unable to adequately support themselves. This financial assistance is called spousal maintenance.

Generally, spousal maintenance will only be ordered where there is a significant disparity in the incomes of the parties and where a clear expiry dates for the payments is given. However, in the recent case of Bodilly v Hand [2019] FamCA 210, the court held that spousal maintenance could be owed to a party even 17 years after their separation in circumstances where the payer had a new family and was headed towards retirement. This case has re-emphasised the need for parties who are experiencing a relationship breakdown to understand spousal maintenance and be aware of any future responsibilities which they may incur.

What does the court consider when deciding on an order of spousal maintenance?

Spousal maintenance is not an automatic right. In deciding a spousal maintenance application, a court considers the needs of an applicant and the respondent’s capacity to pay. This involves considering the parties’:

  • Age and health,
  • Income, property, and financial resources,
  • Ability to work,
  • Ability to earn an income as a result of the marriage, and
  • Standard of living.

An example of when a court will most likely make an order for spousal maintenance is in cases where one party is unable to work due to disability or illness. This liability to maintain a former partner can continue until their death or until they are able to support themselves financially. However, as noted above, usually when making orders for spousal maintenance the court will specify a date or event that will release the payer from their liability. Such events could include re-skilling, securing employment or commencing in a new relationship.

Applications for spousal maintenance for married couples must be made within 12 months of their divorce being finalised, whereas applications for de facto partner maintenance must be made within 2 years of the breakdown of the de facto relationship. While it is possible to apply outside the time limits, the court does not always grant these late applications so these limitation periods should be noted.

Case Study: Bodilly v Hand [2019]

The parties involved in this case had separated in 1998 and subsequently reached an agreement that the husband would pay to the wife spousal maintenance of $500 per week in 2000. In the 17 years that followed, the parties had little contact and the husband continued to pay spousal maintenance. By November 2009, the wife was housebound with a diagnosis of multiple sclerosis and began receiving benefits from the NDIS.

The wife made an application to the court seeking further spousal maintenance orders, such that the husband pay to the wife $3,000 per week. The husband sought a discharge of the previous spousal maintenance orders and a fresh consideration of the necessity of any order being made in favour of the wife.

In determining the application, the Court considered whether there exists a point in time where it is no longer appropriate for an order for spousal maintenance to continue, such as retirement or anticipation of retirement. The Court held that the wife still had a need for spousal maintenance as she was unable to support herself adequately from her own income. The husband was thereby ordered to continue paying spousal maintenance of $500 per week with no date upon which the order would cease.

The Court also considered whether the receipt of NDIS payments had an impact on spousal maintenance payments. Justice Cronin held that the wife was not entitled to argue that any shortfall in the budget from her NDIS payments should be met by the husband as part of her maintenance claim, as this would go beyond the intention of the scheme.

How Etheringtons Solicitors can help with your family law matter

 A party’s obligation to pay spousal maintenance may be discharged in various ways including through periodic and regular payments or by way of a lump sum payment. It may also exist for different periods of time. The calculation of and assessment for the need of spousal maintenance requires a deep understanding of family law and the time limits which apply. If you need legal advice regarding separation and spousal maintenance, please contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800 or via the below contact form.