There are various types of payments that can be made within Family Law matters.
Some of the most common types of payments are Spousal/De Facto Maintenance and Child/Adult Child Maintenance. This article looks at the significance of these types of payments and the factors that cause such payments to be granted.
Spousal Maintenance and De Facto Maintenance
Spousal maintenance is monetary support paid from one spouse to a marriage, to the other, in instances where the other spouse cannot adequately financially support themselves. This type of financial maintenance is dealt with in Part VIII of the Family Law Act 1975 (Cth), and in particular section 75(2). This section of the act outlines the factors that need to be satisfied in order for an application for spousal maintenance to be approved. Whilst the list is extensive, some of the main factors include:
- The age and health of the parties;
- Whether there are any physical or mental incapacities that prevent a party from obtaining gainful employment;
- The earning capacity of the parties; and
- Having the care of the child/ren of the marriage, who are under the age of 18.
Similarly, de facto maintenance is monetary support paid from one party from the relationship to the other, in instances where the other de facto party cannot adequately financially support themselves. This type of financial maintenance is dealt with in Part VIIIAB of the Family Law Act, and in particular section 90SF(3). The various factors that must be satisfied are similar to those for spousal maintenance. In order to obtain this type of support you must first satisfy that you are in fact in a de facto relationship in accordance with section 4AA of the Family Law Act.
Spousal or de facto maintenance can be payable either as a lump sum payment or periodic payment in circumstances where both parties agree, or where an application has been made and approved by the Federal Circuit and Family Court of Australia.
Child Maintenance and Adult Child Maintenance
Child maintenance orders can be made in the Federal Circuit and Family Court of Australia, regarding financial aid for a child under 18 years old. A parent, child, grandparent, or any other person who is concerned with the care, welfare or development of the child can make an application for this maintenance. This type of maintenance is dealt with in Part VII Subdivision D of the Family Law Act 1975 (Cth), and in particular sections 66J and 66K. These sections of the act outline the factors that need to be satisfied in order for an application for child maintenance to be approved, some of the main factors include:
- The proper needs of the child;
- The income, earning capacity, property and financial resources of the child and/or the party/ies; and
- The commitments of the party/ies, that are necessary to enable the party to support themselves or any other child or person that they have a duty to maintain.
Adult child maintenance relates to children over 18, and orders in relation to this type of maintenance should not be made unless it is necessary to enable the child to complete their education (inclusive of tertiary studies) or the child has a serious illness or disability. Child maintenance would ordinarily stop as soon as a child turns 18 unless there is an express order for adult child maintenance. This is governed by section 66L of the Family Law Act 1975 (Cth). Should an adult child be married or in a de facto relationship, they will no longer be eligible for adult child maintenance.
If you are having issues with family law payments, or any other aspect of family law, one of our skilled lawyers can assist. Book your free initial consultation now, by calling (03) 8658-0040 or booking in a suitable time here:
