Be careful with spouse maintenance
Spouse maintenance is financial support paid by one person to their former spouse or de facto partner in circumstances where they are unable to support themselves. Ordinarily, applications for spouse maintenance must be made within 12 months of the divorce order taking effect (for married couples) or two years from the date of separation (for de facto couples).
You cannot apply after this time limit unless the other party consents or you have been granted “leave” by the court to proceed “out of time”. The court may give leave only if it is satisfied that financial hardship would result to the applicant or a child of the relationship; or if the applicant would be unable to support themselves with an income-tested pension, benefit or allowance.
However for people who were married, there is no time limit for making an application to seek the “revival” of an old spouse maintenance order.
A recent case considered this issue, after an ex-wife applied for spouse maintenance of $400 per week from her former husband, 21 years after the couple were divorced.
The pair married in 1970 and separated in 1996. They divorced in 1998 and the husband remarried.
In 1999, a property settlement order and an order in favour of the wife for spouse maintenance of $750 per month, payable for 10 years was made. The order stated that “thereafter the wife shall be at liberty to seek the payment of further spousal maintenance”.
In 2009, a lump sum spouse maintenance order in favour of the ex-wife for $275,000 was made. That order also stated that the orders would “finally determine any obligation by the former husband to provide spouse maintenance to the former wife”.
In this case, the judge determined that there was no spouse maintenance order currently in force as the 1999 order had finished and the 2009 order had been complied with and completed. However, the ex-wife’s new application for spouse maintenance would be considered as seeking the “revival” of the order which had been previously made.
The judge said the 12-month time limit for applications by married couples does not apply to applications “seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party”.
The judge therefore determined that the wife did not need leave to proceed with her application for spouse maintenance and the case should go to trial to determine whether the husband should have to pay spouse maintenance to the ex-wife.
This case highlights that careful consideration should be given to the potential long-term impacts of a spouse maintenance order prior to applying for, or consenting to, such orders. Specialist family law advice from the outset is the key.
If you need advice on spousal maintenance, separation or divorce, or any other aspect of family law, please contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected]
