Interim maintenance – what if I can’t pay?
Maintenance, particularly spousal maintenance, is financial support paid by one person to their former partner in two circumstances – if that ex-partner cannot financially support themselves, and if the other person has the capacity to financially support them.
Anyone looking for maintenance must be able to prove those two elements. What happens if a court decides you must pay maintenance, but you just can’t afford it?
In a recent case, (Gilmour and Hofte), there was an appeal made against interim maintenance orders.
The couple had been in a defacto relationship for 10 years and had two children together. After splitting, the couple continued to live under the same roof for another 12 months.
A judge initially made interim orders which meant the father of the children had to pay maintenance amounting to $1100 per week.
However, the appeals court found the primary judge made a mistake in finding he had the capacity to pay maintenance.
In the initial case, the judge discounted the man’s rental payments from $1,450 to $800 per week, when he was legally liable for rental payments of $1,450 per week for a set amount of time.
It was an expense he could not avoid.
He told the court that even if his expenses were notionally reduced by $1100 each week, his expenses still exceeded his income.
The court did find that his former partner was eligible to receive some maintenance, as she was unable to support herself for several reasons.
Firstly, she had been the children’s primary carer and had been out of the workforce for some time; and she was in the process of gaining new qualifications to re-enter the workforce in a new capacity.
Her only income was welfare payments, and the maintenance she received from her ex was for the children’s expenses.
The appeal court ruled the father of the children had to pay maintenance of $583 per week.
These interim orders were to remain in place until the couple had finalised their property settlement and child support arrangements.
Failure to pay either maintenance or child support is a breach of court orders, and it’s important you get the right legal advice for your individual situation.
The family law experts here at Michael Lynch Family Law can help you in any situation.
We know this is a trying time for you. Please contact our office on: (07) 3221 4300 or email: law@mlynch.com.au to make an appointment.
