After the breakdown of a marriage or a de facto relationship a person may find themselves in a weak financial position after the financial support once provided to them is withdrawn or decreased. This change in financial support can leave a person in a situation where they are unable to support themselves. Additional circumstances may also affect that person’s ability to earn an income, such as caring responsibilities for the children of the relationship, medical issues or lack of work experience.
In some circumstances a person can apply to the Family Court of Western Australia for maintenance, which is similar to what other countries call “alimony”. It should be noted that child support, which is to support the children, is separate from maintenance, which is to support a party to the relationship.
Maintenance orders can be periodic (ie: $x per week) or a lump sum of cash or a portion of other property such as land. They can be made in urgent situations on short notice, or as part of a final property settlement. Commonly, maintenance is ordered on an interim basis pending a final property settlement as the Courts will attempt to finalise the financial relationship between the parties once and for all.
The purpose of maintenance is to bridge the gap between a party’s income and their reasonable needs. In order to determine an application, the Family Court must consider 2 questions:
- Does the Applicant have a need because they are unable to adequately support themselves?
- Does the Respondent have the capacity to meet the needs of the other person?
Determining a maintenance application is not a one size fits all approach. The Court will consider each case on the individual facts.
Firstly, the Applicant is required to demonstrate to the Court all their financial needs to support a standard of living that is reasonable in the circumstances.
Then the Court will extensively look at all of the Respondent’s needs and financial commitments to determine if they have surplus income. The Court will also carefully consider any attempts made by the Respondent to reduce their income for the purpose of avoiding a spousal maintenance claim. In these circumstances a Respondent can be assessed to pay maintenance on their capacity to earn an income and not on what they are currently earning.
Where maintenance orders continue after the final property orders are made, they are usually made for a period of time to enable a person to retrain or for their circumstances to change so that they can adequately support themselves. For example, maintenance may end once the youngest child commences school. There also are certain circumstances that bring a maintenance order to an end. Failure to adequately assess the Respondent’s capacity and method of payment can lead to ongoing issues relating to enforcement of the orders, which can be time consuming and costly for both parties.
