A Court may order that a spouse pay their former partner maintenance following the breakdown of their relationship (or even during their marriage, if the parties are married), "spousal maintenance", where one party cannot provide for their own needs. The order may require spousal maintenance to be paid indefinitely or only for a specified period, which raises the question – when will it end?
The Family Law Act 1975 (Cth) (“the Act”) provides that an order with respect to the maintenance of a party to a marriage (or a de facto relationship) ceases upon the death of either the party receiving or making the spouse maintenance payments (the “payee” and “payer”, respectively).
An order for spousal maintenance will cease upon the re-marriage of the payee, unless special circumstances exist.
3. New de facto relationship? It's not that simple...
This may come as a surprise: an order for spousal maintenance does not automatically cease upon the payee commencing a new de facto relationship, even if the order for spousal maintenance was in relation to a de facto relationship in the first instance.
In these circumstances, the payer may apply to the Court to discharge or vary the order for payment of spousal maintenance if:
- The circumstances of the payee have changed (including the party entering into a stable and committed de facto relationship);
- The circumstances of the payer have changed; or
- The cost of living has changed to such an extent as to justify changing the order.
A myriad of factors must be considered by the Court when determining a party’s entitlement to spousal maintenance upon the payee re-partnering, including but not limited to:
- Whether or not the new relationship actually constitutes a de facto relationship as defined by the Act; and if so
- The financial circumstances of the relationship, for example, whether or not the new couple’s incomes are pooled, the nature of their living arrangements and the financial circumstances of the new de facto partner.
Attempting to establish the existence or not of a de facto relationship of itself can involve significant time and expense, as litigation of the dispute is typically protracted and costly.
In some cases it is clear when a party’s liability to pay spousal maintenance ends, for example, upon the death or marriage of the payee. However, where a payee enters into new de facto relationship, the question “when will it end?” is considerably more difficult to answer.
Entering into a Binding Financial Agreement is a mechanism by which parties can ensure finality and clarity as to when spouse maintenance payments will end. If you would like to speak with our Family Law Team in relation to spousal maintenance or Binding Financial Agreements, click here.