Time limits may apply for your Spousal Maintenance claim
Published by Naomi Cole
Are you going through separation or divorce? Or maybe you have been separated for some time? Either way, it’s important that you understand what spousal maintenance is as you may be entitled to a claim for payment.
So what is spousal maintenance? Spousal maintenance (known as alimony in the United States) is when one spouse is ordered by the Court to pay a sum of money to the other spouse, either as a lump sum or in weekly instalments. This payment is to provide financial support to a former husband or wife or in the case of de facto relationships, to a former partner in circumstances where they are unable to adequately support themselves. Be sure to read our blog entitled ‘Should I apply for Spousal Maintenance?’ for more information about your eligibility to a claim for payment.
Many people are aware that the finalisation of their divorce will trigger a 12-month period that they have to commence legal proceedings should they require the Court’s assistance to finalise their property arrangements. If you and your former spouse were never married but were instead in a de facto relationship, this period is two years after the date of separation.
There is a common misconception surrounding these time periods and those relating to Property Matters, because many people believe that once the time period expires, their former spouse is unable to bring forth an application before the Court in relation to property. This is not necessarily the case. Exceptions can apply and a party will firstly need to seek special approval of the Court for their matter to be heard if they find themselves bringing forth an application after the respective time period has expired.
This can be the same for spousal maintenance payments. The recent case of Blevins & Blevins [2019] FCCA 1923 is very unusual in that the Court granted permission for the former Wife to make an application to the Court seeking a spousal maintenance payment of $400 per week some 23 years after the parties separated. This decision was supported by the prior case of Atkins & Hunt, where it was upheld that ‘First, and centrally, the liability for spousal maintenance does not come to an end upon the end of the marriage...’
The key factors that a Court will look at is whether hardship would be caused to the spouse seeking maintenance if the Court did not allow their application to be heard, or if at the end of the time period for which a spousal maintenance application could have been filed (that is either 12 months if the parties were married or two years for de-facto relationships), whether the spouse making the application would have been unable to support themselves without an income tested pension, allowance or benefit.
It is important to remember that each case is different and dependent upon the individual circumstances of the matter. If you have any questions about spousal or de facto maintenance or would like to discuss whether this is an option that applies to you, please contact us on (02) 8379 1835 to arrange a conference with us.
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