What is interim maintenance?
Interim maintenance refers to temporary financial support paid by the higher-income earning partner to the lower-income earning partner after separation. Its purpose is to help meet the reasonable financial needs of the lower-income partner while the court decides on a final maintenance order. Unlike child support, which is paid between parents to cover childcare expenses, interim maintenance focuses specifically on the financial needs of the lower-income spouse or partner. Interim maintenance is intended to provide this partner with support and stability during the often challenging period of transition following separation.
How is an application for interim maintenance made?
You can apply for interim maintenance only if you’ve also applied for a final maintenance order, or are seeking to modify an existing final maintenance order. Therefore, an application for interim maintenance is usually filed alongside a final maintenance application. You must address why interim maintenance is sought in a supporting narrative affidavit, and you should also file an affidavit of financial means and their sources outlining your income and expenses. Interim maintenance applications are generally made “on notice,” meaning the other party will be served with the paperwork and have 21 days to respond.
Can urgent interim maintenance proceedings be filed?
Yes, urgent applications, or “without notice proceedings,” can be filed to seek interim maintenance. These applications are rare and require compelling evidence that urgent relief is necessary. If a without notice application is filed, a judge will usually consider it within 48 hours, without giving the other party a chance to respond first. If the judge grants the order, the other party may be required to pay interim maintenance for up to 6 months. Regardless of whether an order is granted, after the judge considers the without notice application, the other party will be served with the application and a summary of the judge’s reasoning granting or declining the order, after which time they can respond.
When will the court award interim maintenance?
Unlike final maintenance, which involves a detailed review of criteria and sections within the Family Proceedings Act, the assessment of interim maintenance is more straightforward. The court has broad discretion to award interim maintenance under section 82, focusing primarily on whether it is “reasonable” to do so, without needing to consider the same detailed criteria as for final maintenance.
While there are no strict criteria for interim maintenance, the court typically considers factors such as the parties’ financial situations, earning abilities, and the standard of living during the relationship when deciding whether to award interim maintenance.
Although a judge is not required to ask or answer the following questions, decisions involving interim maintenance often see the judge adopting these key questions to help determine whether interim maintenance should be awarded:
- What can be identified as the applicant’s reasonable needs?
- What means does the applicant have to meet these needs?
- What can be identified as the respondent’s means?
- What is the ability of the respondent to meet the applicant’s reasonable needs?
- Should the court exercise its discretion to award interim maintenance?
Case Study – interim maintenance:
In the case of RMA v JB, Ms J and Mr R lived in a family home owned by a trust settled before their relationship, which was linked to Mr R’s family. When they separated, Ms J had no claim to the home, as it was owned by Mr R’s pre-existing family trust. After separation, Mr R asked Ms J to leave the home, which left her in a difficult position. She had two young children to care for and could not work. Mr R, who had been the income-earner during their relationship, also stopped providing financial support, leaving Ms J unable to meet her reasonable financial needs. As a result, Ms J applied for both interim and final maintenance orders “on notice”, meaning that Mr R had a chance to respond before any orders were considered.
RMA v JB – Family Court decision:
After Mr R filed his response, the interim maintenance application was scheduled for a Family Court hearing quickly, so the parties had not exchanged all financial information yet. There was also a dispute over the length of their de facto relationship, with Mr R claiming it lasted less than three years, while Ms J argued it lasted over three years.
Despite the disagreement on the relationship’s length and the incomplete financial information, the Family Court Judge proceeded to determine the interim maintenance application. The Judge ruled that section 82 of the Family Proceedings Act allows the court to make interim maintenance orders, even if there are outstanding disputes or full financial information is not yet available. The Judge found that Ms J’s situation — caring for young children with no financial support from Mr R — caused serious injustice, making it reasonable to award her an interim maintenance order. Ms J was awarded $3,000 per month in interim maintenance.
RMA v JB – Appeal:
Mr R appealed the decision, arguing that the Family Court should have determined the relationship’s length before making the interim maintenance order. He argued that section 70B of the Family Proceedings Act, which limits the granting of final maintenance orders in de facto relationships lasting under three years in certain scenarios, should apply to limit Ms J’s interim maintenance claim. However, the High Court clarified that section 70B applies only to final maintenance applications, not interim maintenance applications, as shown by the wording and structure of the Family Proceedings Act. The High Court upheld the Family Court’s decision, confirming that interim maintenance is jurisdictionally distinct from final maintenance and subject to less stringent criteria.
The High Court also agreed with the Family Court that interim maintenance can be awarded even if full financial disclosure has not been provided, or if certain issues remain unresolved. The High Court emphasised that interim maintenance is intended to address immediate financial needs while final maintenance issues are being determined. Interim maintenance is designed to deal with financial needs while a case is pending, even though some matters are still unclear or in dispute. In any event, the High Court considered that there was sufficient information available to proceed with the interim maintenance decision in RMA v JB, even though all financial information had not yet been disclosed.
RMA v JB – Key takeaway:
The case RMA v JB demonstrates the key takeaway that interim maintenance is meant to provide immediate relief while a final maintenance case is pending, and that interim maintenance can be awarded even if some matters are unclear or in dispute. In contrast, final maintenance orders require more detailed evidence and are subject to stricter statutory criteria before they can be granted.
What are the key differences between interim maintenance and final maintenance?
The key differences between interim maintenance and final maintenance include:
1. Legal test: Interim maintenance is subject to a discretionary legal test, while final maintenance can only be awarded based on a strict legal test, as outlined in the Family Proceedings Act.
2. Duration: Interim maintenance orders last for up to six months, providing temporary support, while final maintenance orders can continue for a much longer period – even indefinitely in some cases.
3. Payment Structure: Interim maintenance is paid periodically (e.g. fortnightly), whereas final maintenance can be paid in various ways, including but not limited to periodic payments, or lump sum payments.
4. Legal costs: Legal and expert fees can be included in the applicant’s interim maintenance budget because they are ongoing expenses during the six-month period while unresolved issues, such as final maintenance or relationship property disputes, are still being addressed. In contrast, final maintenance is typically one of the last matters decided by the court. By this stage, legal and expert costs are no longer considered valid expenses, as these costs generally cease once all issues are resolved. As a result, they are not factored into the applicant’s financial needs when determining final maintenance.
Our comments on interim maintenance
Applicants can include legal and expert fees as part of their budget when seeking interim maintenance, which the court uses to determine the amount of support required. These fees can be substantial, often doubling the applicant’s budget by covering both daily living expenses and litigation costs. For example, applicants engaging King’s Counsel may face legal fees exceeding $10,000 per month for relationship property and maintenance matters.
Because interim maintenance includes legal fees, negotiating a settlement outside of court can be a more cost-effective approach. This avoids the high litigation costs and reduces the applicant’s overall budget, lowering the amount of interim maintenance sought.
Litigating interim maintenance in court can lead to significantly inflated budgets due to the inclusion of legal and expert fees incurred during the dispute. In a sense, this creates “double jeopardy” for the respondent, who must cover not only the applicant’s living expenses but also a substantial portion of their legal costs. Prompt and reasonable negotiation outside of court is therefore the best strategy to prevent the applicant’s budget from escalating and to achieve a fair resolution more efficiently.
Strategies to avoid or minimise interim maintenance claims
To reduce the likelihood of an applicant pursuing an interim maintenance claim, consider the following strategies:
1. Contribute to costs: Offering financial assistance or contributing to the applicant’s expenses can help prevent the need for interim maintenance. It’s also advisable to seek legal advice to determine what level of contribution is reasonable in your specific circumstances. Negotiating outside of court to establish financial expectations and contributions can resolve issues before they escalate into formal claims.
2. Allow the applicant to stay in the family home, or provide housing support: If the applicant is the primary caregiver for children, letting them remain in the family home can provide stability and help avoid maintenance claims. Alternatively, you can assist them with housing costs elsewhere. For example, in RMA v JB, Mr R could have helped Ms J with rental costs for a separate home for her and the children, rather than evicting her without support. Offering such assistance can prevent the financial strain that often leads to interim maintenance claims.
3. Avoid drastic actions: Immediately cutting off all financial support after separation can trigger both interim and final maintenance claims. If the applicant’s situation changes drastically, such as being left without financial support, they may feel compelled to seek financial relief through the courts. It’s crucial to seek legal advice before taking any drastic steps, as such actions can lead to costly court proceedings, which may be more expensive than negotiating a settlement outside of court.
4. Gradually reduce financial support: Instead of cutting off financial support suddenly, consider gradually reducing it over time. This gives the applicant an opportunity to adjust and find alternative solutions. This approach can help avoid triggering maintenance claims.
We are here to help
If you’re facing or considering an interim maintenance claim, it’s important to seek legal advice as soon as possible. Early advice can help you understand how financial arrangements will be structured post-separation, potentially minimising the need for lengthy and costly litigation.
At Fixed Dispute Resolution, we offer clear, fixed-fee packages to guide you through the interim and final maintenance process. Our experienced team can help you understand your options and support you in achieving a fair resolution. Contact us today for a free consultation and find out how we can help.