How are spousal maintenance proceedings commenced?
In most cases, maintenance issues are settled through an agreement, so court involvement is unnecessary. However, if an agreement can’t be reached, you may need to take the matter to Family Court. The applicant (the person seeking maintenance) must file several documents to initiate the proceedings:
- Application: The document outlining the applicant’s claim for maintenance.
- Affidavit in Support: A sworn statement explaining the applicant’s circumstances and why they are seeking maintenance.
- Affidavit of Financial Means and Their Sources: Both parties must disclose their income, expenses, and financial situation for the past year. This information helps the court assess the need for maintenance.
Once these documents are filed by the applicant, the respondent (the other party) will be served with them.
How do I respond to a spousal maintenance application?
If you’ve been served with a spousal maintenance application, it’s important to respond promptly. Typically, you have 21 days to file your response, although extensions are possible. Here’s how you should proceed:
- Notice: File a notice indicating your position on the maintenance claim.
- Affidavit in Support: Provide an affidavit explaining why the maintenance request should be denied or adjusted.
- Affidavit of Financial Means and Their Sources: Like the applicant, you must disclose your financial situation.
How can I seek extra time to respond to a spousal maintenance application?
If you need extra time to respond, your lawyer can file a notice of solicitor acting, which informs the court that you have legal representation and provides your lawyer’s details. Your lawyer can then ask the other party for an extension. If they don’t agree, you can request an extension to respond from the court, which is typically granted.
What happens if I do not respond?
Responding within the required timeframe or within the time permitted by any granted extension is essential to participate in the Family Court process. If you do not respond, the court may proceed without hearing your side of the case. Here’s what could happen:
- The court may make a decision based solely on the applicant’s evidence.
- If the applicant proves their need for maintenance, the court could issue an order requiring you to pay.
What happens if I formally defend the application?
If you wish to defend against a maintenance claim, the case will move forward in court, starting with a judicial conference. The conference allows the court to get an overview of the case but does not involve hearing evidence or resolving disputes. The judge will give directions for how the case should proceed, including scheduling any hearings for disputed issues. Depending on the complexity of the case, multiple case reviews or conferences may be required before the case can proceed to a full hearing.
What is the legal test for granting maintenance?
In previous insights, we discussed the grounds for awarding maintenance and the concept of reasonable needs, which are crucial in determining how much one partner may need to pay the other after separation. This insight will not revisit those topics, as they are covered elsewhere on our website. Instead, we will focus on the top five most commonly used defenses to maintenance claims, outlined below.
Common defences to spousal maintenance claims:
1. The applicant cannot establish a ground for maintenance:
As mentioned in a separate insight, the applicant must show that their inability to meet their reasonable needs has resulted from one of the qualifying maintenance criteria. For example, if an applicant is arguing that they cared for the children during the relationship and now cannot earn enough post-separation to meet their needs, it would be best practice to provide evidence demonstrating the division of functions during the relationship, and how their role during the relationship interferes with, or limits, their ability to earn a satisfactory income post-separation. If the applicant is unable to establish a connection between their inability to meet their own financial needs post-separation and a qualifying maintenance ground, then they may not be awarded maintenance due to a lack of causation.
For example, in Appleton v Appleton, the court dismissed the applicant’s claim for spousal maintenance because her inability to support herself was not linked to any of the qualifying grounds for maintenance. The short duration of the marriage (only 9 months) meant there was no division of functions between the spouses during the relationship that affected the applicant’s ability to support herself post-separation. Due to the short relationship, there were no other qualifying maintenance grounds that the applicant could make out either.
Appleton v Appleton highlights an important point for those defending a maintenance claim – the applicant must demonstrate that their inability to support themselves post-separation is connected to one of the qualifying maintenance grounds. There must be a clear link between the applicant’s inability to support themselves and one or more of the qualifying criteria for maintenance. If it can be shown that no such link exists, this is a strong defence against a maintenance claim.
2. The applicant has sufficient resources to meet their own needs:
Even if the applicant can establish one or more of the qualifying maintenance criteria, their claim can be denied if they can support themselves financially from their own resources. For example, in Murdoch v Murdoch, the case involved a short marriage of less than three years, where the husband made significant financial contributions, while the wife contributed little financially. After their separation, the wife applied for spousal maintenance, claiming she couldn’t meet her needs because she was unable to find work. At the same time, the court was tasked with dividing the couple’s relationship property.
The judge found that there was a qualifying ground for maintenance as the wife validly faced an inability to work. Although the wife established a ground for maintenance due to her inability to work, the judge found that her share of relationship property was enough to meet her reasonable needs post-separation. Under the Family Proceedings Act 1980, the court can take into account any property a person receives from the division of relationship property when deciding if maintenance should be paid. Since the wife would receive a lump sum from the division of relationship property which was being decided at the same time as the maintenance application, the judge decided that the wife could use her relationship property entitlement to support herself. As a result, the court ruled that the husband didn’t need to pay ongoing maintenance, as the wife actually would have enough financial resources to meet her own needs.
For those facing the possibility of paying spousal maintenance, it’s often beneficial to ensure the division of relationship property is settled as quickly as possible. Once the other party receives their share of the relationship property, they may no longer be eligible for maintenance if they can meet their financial needs from their own resources. This argument was successful in the case mentioned earlier. However, it’s important to note that not all cases will follow this outcome. In some instances, applicants have still been awarded maintenance even after the final division of relationship property. As such, the applicability of this defense is highly case-specific and depends on the individual circumstances of each case.
3. Prolonged financial needs or “repugnant misconduct”:
Even if the applicant establishes a qualifying maintenance ground and a genuine need for financial support, section 66 of the Family Proceedings Act allows a court to deny their claim in certain situations. If the applicant deliberately prolongs their financial needs or engages in repugnant misconduct, the court may find it unfair to require their former partner to support them, even if the maintenance grounds are otherwise met. Section 66 applies to spouses, civil unions, and de facto partners, but is rarely successful, as minor complaints usually do not meet the necessary threshold.
For example, in CAM v DCK, CAM and DCK, who had been in a de facto relationship for eight years, lived in a holiday home in Fiji owned by DCK’s trust. After their separation, DCK voluntarily paid CAM $3,352 monthly for 18 months and then offered her a $100,000 settlement, conditional on her leaving the Fiji home. CAM refused to leave the Fiji home, and she also applied for maintenance on the basis that she couldn’t work in Fiji.
However, the court noted CAM’s prior success in dressmaking and design, suggesting she could return to work without retraining. The judge found that her choice to remain in Fiji was more about lifestyle than necessity, indicating her financial need was prolonged by her own decisions. As a result, CAM’s maintenance request was denied due to her own decisions prolonging her financial need, as she had not taken timely steps to support herself.
Another relevant case, Sadgrove v Sadgrove, involved a wife who had fraudulently claimed benefits during her relationship. After the husband and wife’s separation, the government sought to recover the debt from her, and she subsequently requested spousal maintenance from her ex-husband to cover the debt. The court denied her request, categorizing her fraudulent actions as repugnant misconduct. Essentially, the court found it unjust to require the husband to pay the debt through maintenance when the wife had unlawfully incurred the debt in the first place.
In summary, these cases illustrate that section 66 arguments typically succeed only when there are unique circumstances indicating that the applicant’s inability to support themselves has been prolonged by their own decisions, or when repugnant misconduct on their part is established. Given this, the court is unlikely to deny maintenance under section 66 for minor issues, such as an applicant refusing work outside their field of experience.
4. The applicant enters into a new relationship:
Section 70A prevents an applicant from claiming maintenance from a former partner if the applicant enters a new marriage, civil union, or de facto relationship. Proving a new marriage or civil union is straightforward as this is documented. However, demonstrating a new de facto relationship — where the relationship has qualities of a marriage without the legal status of a marriage — is more complex. The court looks at several factors to determine if a relationship is de facto, including its duration, living arrangements, financial interdependence, mutual commitment, joint care of children, and public reputation.
If the applicant claiming maintenance is dating someone but that relationship doesn’t meet the de facto criteria, section 70A won’t apply. However, if they are living with a new partner, sharing finances, or raising children together, these factors may indicate a de facto relationship and could disqualify them from claiming maintenance. It’s important to be cautious about making assumptions, as new relationships can take time to meet the de facto threshold. Raising this issue too early might alert the applicant, causing them to be more secretive about their new relationship, or causing them to keep the relationship casual to maintain their maintenance payments.
For those considering this defence, it may be strategic to wait for clear evidence of a de facto relationship to develop naturally. Under Family Court Rules, you can request documents like bank statements that show financial mixing or shared accounts with a new partner. This can provide strong evidence of a de facto relationship, especially if funds are combined or if joint expenses indicate financial interdependence. Waiting for documented evidence to develop naturally can strengthen your defence that the applicant’s new de facto relationship has reached the de facto threshold, potentially ending your maintenance obligations under section 70A.
5. The respondent is unable to pay maintenance:
Section 65 of the Family Proceedings Act outlines the factors a court must consider when determining the amount of maintenance payable by one spouse, civil union partner, or de facto partner to the other. Key considerations include the paying party’s means, potential earning capacity, reasonable needs, and any financial responsibilities toward others. As a result, a respondent can argue under section 65 that these factors affect their ability to pay maintenance, potentially leading to a finding that they cannot pay maintenance even if they would otherwise be liable, or that they are only required to pay a reduced amount of maintenance given their circumstances.
For example, in the case of Malina v Hensley, Ms Malina sought interim spousal maintenance from Mr Hensley after their separation from a long-term de facto relationship. She claimed she needed $46,850.21 per month to meet her reasonable needs based on her previous standard of living. However, Ms Malina was willing to accept $15,000 per month temporarily by way of interim maintenance to cover her legal fees and daily expenses.
While the court acknowledged Ms Malina’s need for maintenance, it also considered Mr Hensley’s ability to pay under section 65. Evidence showed that, although they had enjoyed a high standard of living during the relationship, they had been living beyond their means. Moreover, Mr Hensley had withdrawn significantly more from his fishing company during the relationship than he was entitled to, leading to substantial debts. His financial situation deteriorated further after their separation due to the COVID-19 pandemic, which severely affected the fishing industry. Consequently, Mr Hensley testified that the fishing business was operating at a loss, with further declines in income anticipated.
Despite the court’s inclination to award a higher maintenance amount, the economic downturn constrained Mr Hensley’s ability to pay. Considering section 65, the judge deemed it reasonable to order Mr Hensley to pay $4,000 per month in maintenance, which would assist Ms Malina in covering her basic living expenses and legal fees. The judge highlighted that the decision was significantly influenced by the financial challenges presented by COVID-19 to the fishing industry, noting that a higher maintenance amount would have been granted if not for Mr Hensley’s inability to pay as a result of the pandemic.
This case highlights how the amount of a maintenance award can be restricted by the respondent’s ability to pay. Even if the applicant justifies their claim for maintenance, the court may not grant the full amount sought if the other party provides reasonable grounds for why that amount would be unfair to pay. Therefore, as a last line of defence to a maintenance claim, arguments can be presented by the respondent under this ground to potentially mitigate any maintenance award, should the grounds for maintenance otherwise be established.
What if a maintenance order is granted against me?
If a maintenance order is made, the court will specify the amount, payment schedule, and duration. Maintenance payments can be collected by the IRD (Inland Revenue Department), but many parties choose to make payments directly to each other. If maintenance payments are not made, enforcement proceedings can be initiated.
Can a maintenance order be varied or discharged?
A maintenance order can be varied or discharged if there is a significant change in circumstances. For example, in Beran v Beran, the court allowed a variation of maintenance after the wife’s financial situation improved.
How Fixed can help
At Fixed Dispute Resolution, we specialize in helping individuals navigate the complexities of spousal maintenance claims. Whether you’re seeking maintenance, responding to a claim, or wishing to vary an existing order, our expert team is here to assist you. Contact us today for a free initial consultation and learn how we can help you achieve the best possible outcome in your case.