It is not unusual for divorce and separation to create financial disparities between the parties in their aftermath, which is usually caused by the home maker's prolonged involvement in domestic affairs and departure from the work force. In such circumstances, the financially disadvantaged party is entitled to request the financially empowered party to pay maintenance in order to sustain his/her day-to-day expenses.
If you are in the midst of a property settlement court proceeding with your former spouse, section 80 of the Family Law Act allows, through ss 72, 74 and 79 of the same Act one party to ask the other party for an interim spousal maintenance order until the court proceedings conclude (this should be distinguished from final spousal maintenance orders). This may be particularly important, as a typical property settlement proceeding may take up to 2 years to conclude, and the interim spousal maintenance order allows the financially disadvantaged party basic resources to go through his/her ordinary, day-to-day activities.
In order to satisfy the Court that you are entitled to interim, spousal maintenance orders, the party seeking the order must cross 3 overarching thresholds. First, s/he must satisfy the court that an interim order is appropriate (as opposed to waiting for the final order months or years down the road); secondly, s/he must satisfy the court that s/he cannot reasonably support him-/herself financially; and finally, s/he must satisfy the court that the opposite party is able to pay the maintenance sought.
Interim orders are appropriate
The first threshold was discussed extensively in the case of Strahan & Strahan (interim property orders)  FamCAFC 166. The party seeking the orders must satisfy the court that it is just, equitable and appropriate to make an interim order. For example, if the party seeking the order, in the Court’s view, would never be entitled to spousal maintenance even at final hearing, then the Court would not be willing to make the order on an interim basis.
Inability to maintain oneself
Secondly, the party seeking maintenance must also satisfy the Court that s/he is unable to support him-/herself adequately (Budding & Budding  FamCAFC 165). This is a matter to be decided on facts and evidence, and the Court considers a wide range of factors such as the applicant’s ordinary expenses, income level, access to savings etc.
Opposing party able to pay the requested maintenance
Finally, the party from whom maintenance is sought must also be able to pay the maintenance sought (Budding & Budding  FamCAFC 165). To put it simply, a person who is already struggling financially cannot be expected to pay spousal maintenance to his own detriments. Once again, this is assessed on evidence and facts.
It should also be noted that spousal maintenance could be ordered on a recurrent basis, or awarded as a lump sum calculated from the sum of a determined period.
Please contact our office if you have any enquiries on spousal maintenance.
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