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FAMILY LAW TOPIC 7:

FAMILY LAW TOPIC 7:. SPOUSAL MAINTENANCE. SPOUSAL MAINTENANCE Preliminary Matters. Overlap between child maintenance and spousal maintenance - see Redman [1987] FLC 91-805 ecclesiastical courts distinguishing alimony from maintenance statutory relief Family Law Act 1975

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FAMILY LAW TOPIC 7:

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  1. FAMILY LAW TOPIC 7: SPOUSAL MAINTENANCE

  2. SPOUSAL MAINTENANCEPreliminary Matters • Overlap between child maintenance and spousal maintenance - see Redman [1987] FLC 91-805 • ecclesiastical courts • distinguishing alimony from maintenance • statutory relief • Family Law Act 1975 • Property (Relationships) Act 1984

  3. (1) SPOUSAL MAINTENANCE UNDER THE FAMILY LAW ACT 1975 • Part VIII ss71-90L (a) Spousal Liability • ‘party to a marriage’: s71 • (conditional) right of support: s72 • payer spouse: ‘reasonably able’ to support payee spouse (ie has the means) • payee spouse: unable to support him/herself adequately (by reason of (a)-(c)] [ie has the need)

  4. (a) Spousal Liability • Three categories in s72: • care of children • age etc for gainful employment • ‘any other adequate reason’

  5. (1) SPOUSAL MAINTENANCE UNDER THE FAMILY LAW ACT 1975 (b)Courts power to enforce liability • discretionary power: s74 • ‘proper order’ • Subject to examination of the so-called s 75(2) factors • also note s 80

  6. (c) Relevant Considerations • section 75(1) ‘shall’ • section 75(2) ‘matters’: a. age & health b. income, property, financial resources, employment capacity c. care of children d. ‘commitments’ e. responsibility to support 3rd party f. eligibility for pension, super etc g. reasonable standard of living h. education/training opportunity

  7. ha. effect on debt recovery j. extent applicant contributed to income etc of the other party k. duration of marriage l. need to protect ‘role of parent’ m. financial circumstances of partner n. terms of s 79 order na. Child support assessment o. ‘any other fact or circumstance’ p. terms of any binding financial agreement • note s 75(3) disregard social security • also note effect of s75(2)(o)

  8. (1) SPOUSAL MAINTENANCE UNDER THE FAMILY LAW ACT 1975 (d) Urgent Orders • Immediate need: s 77 [e] Specification in Orders • specify maintenance component: s 77A

  9. (f) General Powers of the Court ‘menu’: s80(1) - also note ss80(2)-(3) a. lump sum b. periodic sum ba. Transfer property c. secured sum d. order execution of document e. trustees f. direct payments h. permanent or fixed orders i. Impose term and conditions j. make an order by consent k. a justice order l. before or after a decree

  10. (g) Cessation of Maintenance Liability • refer s82 • two situations • death • remarriage of beneficial spouse

  11. (h) Modification of Order • refer s83 • discharge, suspend, revive or vary • change of circumstances • cost of living change • consent order not proper • material fact(s) withheld

  12. (i) Maintenance Agreement • historically void • right to sue: s 119 • definition: s4(1) • ‘s 86 agreement’ • registered only • see (old rule O 26 r 1) • ‘s 87 agreement’ • approved by court • note s 87A • also note s 87(4A) **now see FLA Pt VIIIA financial agreements • note s 90F(1A) re maintenance and need for income-tested pension

  13. (2) CHILD BEARING EXPENSES UNDER THE FAMILY LAW ACT 1975 (a) Liability of father to contribute if not married to mother • Part VII Division 8 Subdiv B • reasonable expenses: s67B (b) Who may institute proceedings • birth mother: s67F (c) Court’s power • as it thinks ‘proper’: s67D (d) Other matters • time limits: s67G • urgent order: s67E

  14. (3) MAINTENANCE UNDER THE PROPERTY (RELATIONSHIPS) ACT 1984 (NSW) • no common law rights (a) Jurisdictional requirements • definitions: ss3-5 • relevant courts: s9, 10 • Part III ‘hurdles’ • residence: s15 • two-year relationship: s17 • two-year time limit: s18

  15. (b) No general right to maintenance • prohibition: s26 (c) Court’s power • limited rights: s27 • child care: s27(1)(a) • education/training (rehabilitative): s 27(1)(b)

  16. (d) Relevant considerations • five matters: s27(2) a. income etc b. needs and obligations c. responsibilities d. property order e. child maintenance • Interim maintenance: s 28

  17. (e) Duration and Cessation of an Order • Effect of marriage or new r’ship? - no application possible if applicant has re-partnered or married: s 29 - see generally ss 30-34: • child care maintenance ceases when child turns 12 or payee ceases to be the carer: ss 30, 33 • rehabilitative maintenance ceases 3 years after order OR 4 years after r’ship ends whichever is shorter: s 30 • either order ceases on death or either party or on marriage of payee: s 32 • arrears not effected!

  18. (f) Modification of order • refer s35 Final Note:Reference of powers to C’wealth • Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) • s 4AA definition + s 90SB (2 year rule) • s 90SE maintenance power = FLA s 74 • s 90SS general powers = FLA s 80 • s 90SF(3) considerations = FLA s 75(2) • s 90SI modification = FLA s 83 • s 90SJ cessation (death and marriage?) • ss 90UA-UD financial agreements = FLA s 90A-D • s 90UI maintenance and income-tested pensions = FLA 90F(1A)

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