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After separation, one partner may need financial support while they transition to becoming financially independent. Spousal maintenance is a form of financial support provided by one party to a marriage, civil union, or de facto relationship to the other party, who is unable to meet their reasonable needs following separation. Spousal maintenance is separate from child support payments as its focus is on supporting an adult party rather than supporting any children. If a party has made an application for spousal maintenance, they can apply to receive interim maintenance urgently from the other party, to assist them financially in the interim while the final spousal maintenance proceedings are being settled.
Interim maintenance can be agreed voluntarily between parties, or one party can apply to the Family Court for an Interim Maintenance Order. The Family Court has jurisdiction to make an interim maintenance order (Interim Spousal Maintenance Order) where one spouse/partner has made an application for spousal maintenance. Spousal maintenance is a payment from one partner or spouse to assist the other partner or spouse who is unable to meet their reasonable financial needs following separation.
Unlike a Final Spousal Maintenance Order, interim maintenance is a more temporary arrangement and cannot be in force for more than six months. The purpose of interim maintenance is to protect the partner who requires assistance in meeting a financial shortfall where determination of the substantive proceedings for spousal maintenance are pending. It is important and often necessary to obtain orders for interim maintenance due to the length of time it can take before an application for spousal maintenance is considered by the Court.
To obtain interim maintenance, the party who is applying needs to show evidence that their income is insufficient to cover their reasonable needs and that the other party has the means to pay this. When determining whether a party has the ability to pay maintenance, the Court will assess their income and assets. Family Court Judges have a wide discretion to determine whether an order for interim maintenance should be made and the amount of maintenance payable until a final maintenance order is made.
When making an application for interim maintenance, it is possible to claim legal and accounting costs as falling within the applicant’s reasonable needs. However, there is not an assumption that the party receiving maintenance is entitled to these costs.
The High Court recently discussed in Bate v Bate that including legal and accounting costs in interim maintenance is fair, in certain circumstances, as one party should not be barred from pursuing a case for division of relationship property against the other due to a lack of funds when the other party is well-resourced. However, in Bate v Bate it was ultimately held that while the legal fees fell within Ms Bate's reasonable needs, she had the means to pay them herself given her access to capital, therefore, this was not a situation where one party had endless resources while the other party had limited funds and thus the Court held that interim maintenance for Ms Bate should not include her legal and accounting costs.
If you are looking to obtain spousal maintenance, interim maintenance or both from your former spouse or partner, we can assist you with negotiation or with the process of applying to the Family Court for an order for maintenance. Or if your former spouse or partner has recently made a maintenance application against you, we can assist you in resolving that matter too.
If you are seeking advice or have any questions or concerns about this topic, please contact:
© McVeagh Fleming 2024
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.
