Relationships / Family

When a couple separates, it may be necessary for one party to seek temporary financial assistance from the other, in the form of maintenance payments. However, in order to obtain an order for maintenance an applicant must satisfy the Court that one of the following grounds has caused a real and substantial lack of self-sufficiency:

  • Due to the division of functions within a marriage or civil union while the parties are living together or have lived together, and taking into account the likely earning capacity of each party and any other relevant circumstances, one party cannot practicably meet the whole or any part of what is considered to be that party's reasonable needs, the other party is liable to such maintenance as is necessary to meet that party's reasonable needs.
  • Also when the reasonable needs of the other party cannot be met by that party due to the responsibilities for the ongoing daily care of any dependent children of the marriage or civil union, after the parties cease to live together.
  • Where a party to a marriage or civil union (during the marriage) is unable to meet his or her reasonable needs due to any physical or mental disability, the other party is liable for maintenance.
  • Where work that is reasonable in all the circumstances for a party to do and is adequate to provide for that party is unable to be obtained, the other party to the marriage or civil union is liable to maintain that party to such an extent as to meet that party's reasonable needs.
  • Where one party to a marriage or civil union has undertaken a reasonable period of education or training designed to increase that party's earning capacity or to reduce or eliminate that party's need for maintenance from the other party, but, because of the division of functions within the marriage or civil union or the responsibilities of a party for the ongoing daily care of a minor or dependent children of the marriage or civil union, it would be unfair, in all the circumstances, for the reasonable period of education or training to be met immediately by that party, then the other party must provide the maintenance.
  • Similarly, where the party undertaking a reasonable period of education or training has previously maintained or contributed to the maintenance of the other party during a period of education or training, it would be unfair, in all the circumstances, for the reasonable period of education or training to be met immediately by that party.
  • Another consideration is the standard of living of the parties while they are living together or lived together.

Frequently Asked Questions

The following are some questions that we are often asked by both those who are seeking financial support (or maintenance) and those who are on the receiving end of maintenance obligations.

APPLICANTS

How long will I receive maintenance from my partner after we have separated?

After the lapse of a reasonable period of time, liability will expire. However, even though a reasonable period has elapsed, the obligations to maintain may continue, having regard to the ages of the parties, the duration of the marriage, civil union, or de facto relationship, and the ability of the spouses or partners to become self‑supporting, so long as it is unreasonable to expect the recipient to do without maintenance and it is reasonable for the payer to continue. Ordinarily, a spousal maintenance order will specify a fixed term after which liability expires.

What if I am in receipt of the domestic purposes benefit?

Liability is not extinguished by a person's reasonable needs being met by a domestic benefit. This rule may also apply to benefits that are not flat‑rate and not universally paid.

RESPONDENTS

What if I am the respondent in a maintenance claim and I did not agree to the separation, am I still liable to pay maintenance?

Liability may be fulfilled where the respondent is willing for the applicant to resume cohabitation, for example where the separation was not agreed to or where the circumstances would not otherwise justify the granting of a separation order.

What if the applicant has contributed to his or her situation of being unable to maintain him or herself?

The Family Court has a discretion to negative any liability because of the conduct of the applicant.

What if the applicant has obtained skills which would enable him or her to find employment?

This previously mentioned test is not likely to have been satisfied where the spouse worked during the marriage and acquired a wide range of skills.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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