Spousal Maintenance and Interim Property Settlements: How You Can Get Your Independence Sooner.

Family Law 25/05/2018 by Linsey Wilson

When you make the decision to separate from your partner, the last thing that you want to have to worry about is money. Unfortunately for many individuals the time surrounding separation can cause significant financial stress, particularly when one party to the relationship has traditionally taken on the role of parent and homemaker whilst the other has earnt an income.

The good news is that depending on your financial circumstances and the circumstances of your former partner, you may be entitled to spousal maintenance and/or an interim (or partial) property settlement.

What is it and am I entitled?

Simply put, spousal maintenance are payments which are made by one party to the other.

The first step in establishing whether or not you may be entitled to spousal maintenance payments is to overcome the ‘threshold test’ which asks two (2) questions:

  1. Are you unable to ‘adequately support’ yourself on your income; and
  2. Is the other party ‘reasonably able’ to pay you.

If it is determined that you are not able to ‘adequately’ support yourself and that the other party is ‘reasonably’ able to pay you, then the Court will give consideration to the extent to which your ex-partner should reasonably be expected to support you[1], i.e. how much should they pay you? This will ultimately involve an examination of your living expenses.

Of course seeking spousal maintenance doesn’t necessarily have to involve going to Court, depending on your circumstances and the attitude of your ex-partner, we may be able to negotiate spousal maintenance payments on your behalf.

 What about a partial property settlement?

Often separating parties don’t have access to money, despite the fact that there are funds available. You may have sold a property and the funds are being held in your conveyancers’ Trust Account; or perhaps your savings are being held in a bank account in your ex-partners’ sole name.

In these situations, we can try to negotiate an interim or ‘partial’ property settlement on your behalf. If negotiations are unsuccessful, we would urge you to consider filing an application for an interim distribution of funds.

Unlike spousal maintenance, any partial property settlement is likely to be ‘added back’ at the final hearing[2]. This essentially means that when the Court makes a final decision about the distribution of your property pool, it may notionally add the funds back into the property pool and treat them as having already been received by you. The practical effect of this is that the Court deducts the interim property settlement from the amount that you would have otherwise received on a final basis had the partial property settlement not occurred.

If you make an application for both spousal maintenance and interim property settlement, the Court must first consider the application for interim property settlement[3]. Logically, this is because an interim (or partial) property settlement may result in you being able to adequately support yourself thus meaning you would not satisfying the first aspect of the ‘threshold test’.

Time Limits

Unless leave is granted by the Court, applications for both spousal maintenance and property applications must be filed within 12 months of a Divorce Order being made final, or in the case of a de facto relationship, within two (2) years of the breakdown of the relationship. If you are outside the time limit, it’s important that you seek advice in relation to filing an out of time application without delay.

That said, it is never too soon to make an application for spousal maintenance or a partial property settlement. Both of these options may assist you in being able to fund your family law property matter, therefore ensuring that you are able to negotiate on an even playing field with your ex-partner.

How we can help

If you find yourself separated from your partner and wondering how you’re going to make ends meet, our Family Lawyers are here to talk to you about your options. Contact us today to book one of our ‘Smart Start’ appointments.

[1] Kajewski & Kajewski (1978) FLC 90-471

[2] Oates and Crest (2008) FamCAFC 29

[3] Ibid

 

«

»