Maintenance

A person who seeks an order for maintenance must demonstrate that they are unable to support themselves because either:

• They have the care of a child of the marriage;
• Their age or some physical or mental incapacity for employment; or
• Any other adequate reason.

A courts is empowered to make such orders as it considers proper for the provision of maintenance under the s 74 of the Family Law Act. What the court considers proper also encompasses the form that the maintenance order is to take. The types of maintenance order a court may make include:

• Urgent orders;
• Interim maintenance orders;
• Final maintenance orders;
• orders for periodic payments;
• orders for lump sum payments
• transfers of property; or
• any other order that is necessary to do justice between the parties.

A party may apply for a maintenance order until 12 months from the date that a Divorce Order comes into effect. If a party fails to apply for a maintenance order within the time limit, then they must seek permission from the court to apply out of time. The court may allow a party to apply out of time if:

• either the applicant or a child would experience hardship if permission were not granted; or
• the party’s circumstances at the end of the time limit were such that they were unable to support themselves without an income tested pension, allowance or benefit.

For de facto couples, an application for maintenance may be filed within two years from date of separation. The time limit for filing is two years. If the time limit elapses, the party seeking maintenance must also seek permission from the court to proceed with their application. The court may grant permission if the party can establish the second-mentioned basis for seeking permission in relation to married couples.