The Long Reach of Spousal Maintenance

It is not often that a particular Family Law case receives media attention, but that happened last year with the case of Blevins and Blevins. It concerned a claim for spousal maintenance made 23 years after the parties had separated.

Spousal maintenance is a form of financial support following a break up of a marriage or relationship. The party that is seeking assistance with spousal maintenance has to prove to a court that they are unable to support themselves and correspondingly the other party has to have the capacity or ability to pay.

Spousal maintenance is generally awarded on an interim basis if, for example, a mother and children have to vacate the family home and have to pay rent. It is used to allow a person time to find stability and perhaps employment after separation. The Court, therefore, considers a person’s age and health, their ability to work, and care of children etc.

When a property settlement takes place, an order to pay spousal maintenance may cease or a lump sum may be paid and it is expected then that the lump sum will end the other party’s responsibility to pay spousal maintenance.

However, in the Blevins case, a former husband was ordered to pay his ex-wife spousal for the third occasion, some 23 years after their separation.

In 1999, the original Spousal Maintenance Order was made in favour of the ex-wife for a payment of $750 per month and that Order was in place until 2008. The Order also stated that she had a right to seek further spousal maintenance payments.

In 2009, 9 years after the Divorce Order was made and upon expiry of the Spousal Maintenance Order, she brought a further Application seeking a lump sum for spousal maintenance as she had been unable to support herself. At that time she was solely reliant on a Disability Pension.

Final Orders were made in 2009 by consent which provided for the ex-husband to pay his ex-wife a lump sum of $275,000 by way of spousal maintenance. There was a notation to the Orders that the Order would finally sever the financial relationship between the parties. The husband complied with the Order and paid the lump sum of $275,000.

In 2014, the ex-wife turned 65 years of age and was no longer legally able to receive the Disability Pension, so she became reliant on an Aged Pension.

In January 2017, the asset test for pensioners changed, which made her ineligible to receive the Aged Pension, so she became solely reliant on her savings and superannuation.

In March 2019, she issued a third Application seeking spousal maintenance on the basis that her savings and superannuation were not sufficient to meet her reasonable financial needs. She was seeking an ongoing payment of $400 per week. By this time, she was aged 69, and the ex-husband, who had since remarried, was 71 years of age. He opposed the Application, stating it was causing significant distress to him and his current wife and that property proceedings had been finalised and substantial sums by way of spousal maintenance had already been paid.

According to the Family Law Act, spousal maintenance applications have to be issued within 12 months of a divorce or 24 months of a de facto relationship ending. Section 81 of the Family Law Act states:

“[The Court] makes such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.”

However, Section 83 of the Act allows a Court to revive or vary a spousal maintenance application provided the person applying can satisfy the requirements of making an order. In this case, the Court decided that the current Application was essentially a revival of the previous one and ordered that the ex-wife could proceed. The matter will now return to Court to determine if the ex-wife can establish a need for spousal maintenance and whether her former husband has the capacity to pay it.

Matters such as these are complicated, so legal advice should always be obtained to maximise the best outcome. There are limited options, but if the person seeking spousal maintenance is not in receipt of Centrelink payments, a binding financial agreement can be entered into if the parties agree to prevent further maintenance applications.

For more information, please contact:
Joanne Cliff

Joanne Cliff
Director
p.  +61 8 8124 1803
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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