In these uncertain times Mathews Family Law continues to be available to provide you with family law advice and support
Mathews Family Law & Mediation Specialists have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.
The International Academy of Family Lawyers, of which Vanessa Mathews is a Fellow, has published a global survey of Lesbian Gay Bisexual Transgender laws (LGBT laws), the results of which can be found here https://www.iafl.com/media/5336/2019-iafl-lgbt-survey.pdf.
The IAFL LGBT Committee stated ‘Laws affecting LGBT people vary greatly by country or jurisdiction. There are now 28 jurisdictions that accept same sex marriage, however gay sex remains illegal in many jurisdictions with the death penalty still applying in 14.
The International Academy of Family Lawyers (“IAFL”) supports all efforts towards full equality of the LGBT
community throughout the world and the end to rules that unfairly discriminate against such individuals and, in
many countries, criminalize countless couples because of the ones they love. There remains a lot of work to be done.
The work done by some fellows of the IAFL is having a real impact and changing for the better the lives of LGBT
people. The LGBT Committee of the IAFL commissioned this survey to capitalize on the knowledge and expertise of
some members for the benefit of the IAFL as a whole and the LGBT community.
The individual submissions in this survey are the work of fellows of the IAFL who have kindly donated their time and
expertise to answer the same questions as set out below. Each of the contributor’s names and contact details are
The LGBT Committee intends that this should be a living resource. We are asking those who have already kindly
donated their time to keep us informed as laws change in their jurisdictions. We have detailed submissions from 46
jurisdictions, however, there remains a good number of jurisdictions not covered where the IAFL has fellows. If your
jurisdiction is not covered and you feel able to complete a survey, please get in touch with the IAFL.’
Congratulations to the IAFL LGBT committee members for preparing such a comprehensive review of comparative laws.
Maintenance – The Basics
Maintenance is available to those who were married, and also those who were part of a de facto couple. While there is no automatic right to maintenance, the court may choose to issue an order for maintenance if the facts indicate that it is proper. When faced with whether to issue an order for maintenance, the court will consider a myriad of factors, such as the ability of one party to pay, the standard of living of the spouses, the income capacity of the receiving spouse and whether it has been negatively impacted by the marriage, any child support being paid, and the health of the spouses.
When an order for maintenance is issued, it is intended to be temporary. The ultimate objective of maintenance is to help the financially disadvantaged party to reach a point of self-support. Most maintenance orders do not last more than three or four years, as the court ultimately wants all parties to reach a point of financial independence so the relationship can be finalised.
If certain specific circumstances have arisen since the order has been issued, the order may be varied. The court may only take this action, however, if one of the circumstances proscribed in the Family Law Act has occurred. An example of when an order for maintenance may be varied is where the cost of living has changed to justify a variation.
Orders for maintenance will terminate upon the occurrence of an event, for instance if either party dies or remarries. However, termination of an order does not affect your right to collect an arrearage.
Maintenance – The Details
When there is a disparity between parties’ income and earning capacity, the Family Law Act allows this disparity to be remedied through the something called “maintenance.” Typically, maintenance is only available for a short-term period – about three to four years. The idea behind only allowing a party to receive maintenance for a relatively brief period of time is that the maintenance payments are intended to compensate the recipient while that person takes steps to enter the workforce or re-establish him or herself.
Much like the approach to property division, the objective of maintenance is to work towards a “clean-break” between the parties. Maintenance is intended to be a temporary crutch to help the financially disadvantaged party get back on their feet and subsequently be able to independently support themselves.
An action for maintenance can be brought before divorce, after divorce (but within 12 months), even if the parties’ marriage is void, and after the breakdown of a de facto relationship. The two major limitations with regard to orders for maintenance are that you must get leave or court (special permission) to seek maintenance after 12 months of the divorce being final, and you cannot seek maintenance if there is a binding financial agreement that addresses maintenance.
Who Is Entitled to Maintenance?
The Family Law Act provides for three circumstances that warrant an order for maintenance for formerly married couples. Said circumstances are:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any adequate reason,
Additionally, the court must consider relevant factors in making this determination. Those factors include: the ability of one party to pay, the standard of living of the spouses, the income capacity of the receiving spouse and whether it has been negatively impacted by the marriage, any child support being paid, and the health of the spouses.
There is a similar provision regarding maintenance for de facto couples. While there is no automatic right to maintenance, one party may be liable to pay maintenance towards the other party to the extent that the party can reasonably do so and only in circumstances where the other party is unable to support himself or herself adequately. The test used by the courts is not whether the applicant is in need of maintenance, but rather if that person is in a position to support themselves with their own resources.
Types of Maintenance Orders
An order awarding maintenance can be made several ways; by consent, after a contested hearing or to meet urgent needs. The Family Law Act gives courts the authority to issue an urgent maintenance order without a detailed enquiry, which would normally be required upon application for maintenance. These cases are rare, and only exist where one party is in immediate need of financial assistance. These orders differ from regular maintenance orders and only last for a limited duration.
Another type of maintenance order is referred to as a secured maintenance order. This occurs where the court makes a requirement that a maintenance order be secured by some type of collateral. These orders minimize the risk of default, and also make the enforcement of a maintenance order easier.
Maintenance can be in the form of periodic payments, a lump sum, or use of the car or home. The modern trend is for maintenance to be issued in a lump sum amount. This is preferable because the objective of awarding maintenance is to provide the financially disadvantaged party temporary help to reach a level of self-support. Often, a lump sum works towards this objective better than periodic payments.
Varying and Terminating Maintenance Orders
Maintenance orders differ from other family law orders in that they may only be varied on limited grounds. In order to have the amount of a maintenance order increased or decreased, the following circumstances must have occurred since the order was made or last varied:
While the court enjoys slightly more discretion when varying other orders in family law proceedings, it is clear that they may only vary maintenance orders for the reasons laid out above.
Once a maintenance order requiring the payment of a lump sum has been executed, and the money paid, that order can no longer be varied. Such orders are deemed to have completed and at that point cannot be altered.
An order for maintenance will terminate upon the happening of various events. It will terminate at a time prescribed in the order, when the order is discharged, when one of the parties dies, or when a party remarries. However, it is important to keep in mind that once a maintenance order terminates, your rights to collect arrears do not also terminate. If you are owed maintenance, you may still collect it despite the fact that the order is no longer in affect.
Partners in a same sex couples can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.
One difference for same sex couple maintenance order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the order set aside.
De facto partners can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.
One difference for a de facto maintenance Order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the Order set aside.
De facto couples can make their own financial arrangements, like any other legally married couple in Australia, or they can turn to the courts to receive a court order. In order to turn to the courts, the de facto couple must meet one of the following conditions:
1. The relationship existed for at least two years OR
2. The couple has a child together OR
3. One person made significant financial or nonfinancial contributions to the relationship and would be at a disadvantage if no order was granted OR
4. The relationship was registered
Yamada & Cain –  FamCAFC 64
This is a case involving the “best interests of the child”. The mother appealed orders placing the child in the care of the paternal great aunt.
The child, Z, was born in July 2005 and lived with her paternal great aunt (“the aunt”) from the time she was a baby until she visited her parents in January 2010. The parents did not return the child after this visit, although it was supposed to last only four weeks. Both the mother and the father of Z – who have four older children ranging in age from seven to eleven at the time of the trial – had criminal records involving the cultivation and possession of marijuana. They lived a transient lifestyle, moving around a good deal, and switching schools for their other children. The most recent move took place in 2010, following the father’s arrest and the family’s desire to be closer to him. The aunt lived in Melbourne.
After Z was not returned, orders were made by consent in July 2010, according to which Z would live with her parents and spend specified school holidays with the aunt. In January 2011, the aunt brought Z to the airport to return her to her mother. There she observed the mother being arrested by Australian Federal Police. The aunt did not transfer Z and Z continued to live with her. A trial ensued and the Federal Magistrate ordered that Z live with the aunt and visit the parents during school vacations and maintain phone and electronic contact. The mother appealed.
Is Parenthood an Overriding Factor?
The mother’s primary claim on appeal was that the Federal Magistrate did not properly balance the importance of parenthood when making a determination of whether a child should live with the parents or a non-parent. The Family Law Act, 1975 requires the court to consider the child’s best interests when making a parenting order. The first primary consideration listed in the Act “is the benefit to the child of having a meaningful relationship with both of the child’s parents.” The mother argued, based on Donnell & Dovey (2010) FLC 93-428 at  that since this relates only to parents, the legal intent was to give parents primacy when considering the best interests of the child. The mother concluded from this that the Federal Magistrate should have considered Z’s relationship with her parent’s the primary factor and her relationship with her aunt on a lesser level.
The Family Court disagreed, also basing its position on Donnell. There the court held that in a particular case, maintaining a relationship with a non-parent may be “equally important or more important than the maintenance” of the relationship with the parent. Further, just because the relationship with the non-parent cannot be a “primary consideration” does not mean that “it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.” Finally, section 60CC(2)(m) of the Act allows the court to take into consideration ” any other fact or circumstance that the court thinks is relevant.”
Ultimately, the Family Court held that the law “recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.” The Family Court found that the Federal Magistrate had indeed carefully weighed all of these factors to determine what was in Z’s best interest. The Federal Magistrate weighed the importance of Z’s relationship with her parents and older siblings against the danger of a transient lifestyle and the instability inherent in such a way of life.
The mother’s appeal was rejected.
There is no automatic right to receive or a duty to pay spousal maintenance. In certain circumstances, separating couples can have an obligation to provide ongoing maintenance for their former partner. The Family Law Act provides that one party is liable to maintain the other party to the extent that party can reasonably do so and only in circumstances where the other party is unable to support him/herself adequately. Spousal maintenance is different to child support.
The decision to order spousal maintenance and how much you or your former partner should receive is based on a range of factors. The court is required under the Family Law Act to take the following factors (amongst others) into account:
Even if one party cannot adequately support him/herself the other party is only liable to support that party so far as they are reasonably able to do so.
The courts also have an obligation requiring them to ensure that any Orders made finalise as far as practical the financial relationship between the parties. This means that where a spousal maintenance order applies, the tendency is for the order to only apply over a short period of time. Certain events will also bring an obligation to pay spousal maintenance to an end. For more information, see here.
Where the property settlement is not yet finalised, an interim spousal maintenance order be made in response to an urgent application.
De facto partners (and same sex partners) can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.
Urgent applications and Interim Orders for spousal maintenance
Spousal maintenance is usually considered as part of an overall settlement of financial matters, although, the Court does have the power to make Urgent and Interim Orders for spousal maintenance until a final trial is reached.
How long do spousal maintenance Orders apply?
A spousal maintenance order will automatically end if the party receiving maintenance dies or marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the order set aside.
The lawyers at Mathews Family Law & Mediation Specialists Melbourne have extensive experience negotiating property settlements generally. Specifically, we can advise on whether spousal maintenance is likely to be a relevant consideration for your situation. We can also advise on the merits of negotiating for or applying to the court for spousal maintenance.
Mathews Family Law is an Australian law firm. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.
Spousal, de facto or same sex couple periodic maintenance may be paid when one party has the financial capacity to pay and when the other party is unable to financially support himself or herself adequately.
In determining whether or not periodic maintenance is paid, each party’s financial income and commitments are assessed.
There is a competing obligation upon the courts to ensure that, as far as practicable, any orders made finally determine the financial relationships between the parties. As a result, there is a tendency for periodic maintenance orders to be for a shorter duration.