Are you in a de facto relationship in New South Wales and are considering seeking maintenance from your former partner? If so, you may be able to apply for a maintenance order from the court. It is essential to understand the requirements, your legal rights, and options under the Family Law Act 1975.
Under the Act, de facto couples have the same rights and obligations as married couples regarding spousal maintenance. This means that if one partner cannot support themselves financially, the other partner may need to provide financial support.
This article will discuss the proceedings for a maintenance order for the parties in a de facto relationship under Sections 90SD to 90SF of the Family Law Act 1975.
Section 90SD: Geographical requirement
When may a court issue a maintenance order for a party in a de facto relationship? Section 90SD of the Family Law Act provides that:
A court may issue a maintenance order when:
- either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction during the making of the application;
- both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship;
- the applicant for the order made substantial contributions concerning the de facto relationship;
- either or both of the parties is a resident in one or more States or Territories that are participating jurisdictions at the application time;
- the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
Section 90SE: Power of Court in Maintenance Proceedings
When does the court have the power to issue a maintenance order? Section 90SE stipulates that after the breakdown of a de facto relationship, the court may issue such an order as it considers proper for the maintenance of one of the parties to the de facto relationship. The two basic requirements that parties must satisfy before the court may issue such an order are:
- (a) geographical requirement, and
- (b) length of relationship of the de facto relationship.
Moreover, this Section provides the following rules for when the court may issue a maintenance order.
- A party to the de facto relationship must apply for a maintenance order.
- The party was bankrupt when they made the application.
- After the application but before the final determination, the party became bankrupt.
- If the bankruptcy trustee applies to the court to join as a party to the proceedings and the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings, the court must join the trustee as a party to the proceedings.
Who Is a Bankruptcy Trustee?
According to the Bankruptcy Act 1996, a trustee in bankruptcy is the trustee in charge of managing the bankrupt's estate. The trustee has ownership of the bankrupt's assets. Moreover, the trustee must either sell all of the vested assets and distribute the revenues to the creditors or sell just enough to cover the debts and give the bankrupt any money or assets left over. A private person who is a registered trustee or the Official Trustee can serve as the trustee.
Under section 90SE, if a bankruptcy trustee is a party to proceedings concerning the maintenance of a party to a de facto relationship, then, except with the leave of the court, the bankrupt party to the de facto relationship cannot submit to the court in connection with any vested bankruptcy property concerning the bankrupt party. Furthermore, the trustee of the agreement applies to the court to be joined as a party to the proceedings.
Other Instances When a Court May Issue a Maintenance Order
- An application is made for an order under this section in proceedings between the parties to a de facto relationship concerning the maintenance of a party to the de facto relationship;
- The debtor party was a debtor subject to a personal insolvency agreement at the time of the making of the application; and
- After making the application but before its final determination, the debtor party becomes a debtor subject to a personal insolvency agreement.
When is an Order for a Maintenance order deemed to be finally determined?
An application for a maintenance order due to bankruptcy or personal insolvency agreement is deemed finally determined when:
- the application is withdrawn or dismissed; or
- other than an interim order, the application resulted in an order.
Section 90SF:Matters that the court must take into consideration in relation to maintenance
This Section states that the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship, and there are specific matters that they must take into consideration.
The party to a de facto relationship must maintain the other party:
- only to the extent that the first-mentioned party is reasonably able to do so
- only if the second-mentioned party is unable to support
themselves adequately whether:
- by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
- by reason of age or physical or mental incapacity for appropriate gainful employment; or
- for any other adequate reason.
These are the matters that the court must take into consideration in issuing maintenance orders:
- the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship)
- the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
- whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years
- commitments of each of the parties that are necessary to enable the party to support themselves and a child or another person that the party must maintain
- the responsibility of either party to support any other person
- the eligibility of either party for a pension, allowance, or
benefit under:
- any law of the Commonwealth, of a State or Territory or another country; or
- any superannuation fund or scheme, whether the fund or scheme operates within or outside Australia; or
- the rate of any pension, allowance, or benefit being paid to either party.
- a standard of living that, in all circumstances, is reasonable
- the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish themselves in a business or otherwise to obtain an adequate income
- the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
- the extent to which the party whose maintenance is under consideration has contributed to the other party's income, earning capacity, property, and financial resources.
Talk to a Family Lawyer Today
It's important to note that there are time limits for making an application for maintenance. In most cases, you must apply within two years of the end of your de facto relationship. If you are considering applying for maintenance, it's a good idea to seek legal advice from a family lawyer. They can guide you through the process and help you understand your legal rights and obligations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.