Spouse Maintenance De Facto Relationship

The right to maintenance for de facto couples are outlined in section 90SF(1) of the Family Law Act (“FLA”) respectively. Under the Family Law Act, a person has a responsibility to financially assist their  former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

The Family Court or Federal Magistrates Court can deal with spouse maintenance applications. If you are seeking de facto spouse maintenance, you need to meet certain criteria.

An application for de facto couples must be made within two years of separation.  The Court may consider granting leave for a party to file an application after this time.

Matters for consideration for de facto couples in sub-section 90SF(3) FLA of the FLA.

Ultimately there are three limbs to the test for spousal maintenance.  The three parts to the test are as follows:

1. Whether or not the person applying for the maintenance is exercising, to a reasonable extent, their ability to support themselves;
2. Whether or not the person applying for maintenance after exercising their ability to support themselves has a reasonable financial need; and
3. Whether or not the person that is being asked to provide the maintenance has the financial capacity to do so, having regard to their own commitments and standard of living which is reasonable in all of the circumstances.

Spousal maintenance can be made payable for a specified period such as to allow a person to complete a course of education, or up until the children reach school age, or may be payable indefinitely, until varied by subsequent court order.

The Court has the power to vary any existing maintenance order provided there has been a significant change in circumstances since the making of the order.  Such variations may be to increase, decrease or cease future payments. 

Spousal maintenance can also be payable on an interim basis up until final determination of the matter.  Such orders are based upon the same legal criteria as final payments, but are more arbitrary in their making because of the limited way in which evidence is available to the Court on an interim hearing.  In practical terms, such orders for interim spousal maintenance are made on the basis of needs and maintaining the status quo of the parties up until a final determination.