Spousal maintenance lawyers – 25 years’ experience in spousal maintenance matters.

In Western Australia parties who are or were at some time married to each other come under the Family Law Act 1975 (Cth) whereas parties who were never married come under the Family Court Act 1997 (WA).  Although these Acts are very similar, they are not the same and there are some important differences.   For instance, the time limit for commencing property and/or spousal maintenance proceedings is different.  For married parties this is 12 months from the date an Australian divorce order takes effect and for de facto spouses this is two years from the date of separation.

Separation generally means living apart from each other.  One spouse can initiate this on their own or it can be decided mutually.  If you continue to live in the same house to obtain a divorce order you will also need to file extra evidence to establish that you were separated and from which date.  This is because you need to establish that you have been separated for at least 12 months.  If there is no agreement about the date of separation and the Court needs to decide that date it will take into account a range of factors to determine when you separated.

In Australia you can only apply for a divorce order when you have been separated for at least 12 months.  There are other requirements you must meet.  You will need a copy of your marriage certificate but there may be other documents required (e.g. citizenship certificate) depending on your circumstances.

 Don’t worry.  You don’t need your partner to agree to the divorce order being made.  If other issues arise because you are not able to serve them or even find them, we can help.

In determining spousal maintenance in Western Australia, the courts undertake a comprehensive analysis that encompasses a range of factors. These include, but are not limited to:

• The financial needs and resources of both parties.
• The age and health of both individuals.
• The duration of the marriage.
• The ability of the applicant to self-sustain, particularly if they are responsible for a child under 18 from the marriage.

Moreover, the courts take into account the lifestyle maintained during the marriage, and duly consider the contributions made by each party, not only financially but also through homemaking and parenting responsibilities. This thorough evaluation ensures that the maintenance awarded is both fair and equitable.

The duration of spousal maintenance can vary greatly, as it is primarily determined on a case-by-case basis. It could be awarded for a specific period, perhaps to allow the other party to regain financial stability, or until certain conditions are met, like the remarriage of the receiving spouse or the completion of a training or educational program to enhance employment prospects.

In some cases, spousal maintenance might be granted as a lump-sum payment instead of periodic payments. It is always recommended to consult with a legal expert to understand the potential duration that may apply in your specific circumstances.

Firstly, you’d want to gather all necessary documents that prove the non-payment, just to have a strong foundation for your case. Then, you have the option of lodging an enforcement application with the Family Court of Western Australia. The court has the power to enforce the order in several ways; they can issue a garnishee order to redirect the payments from their employer or even from their bank account directly to you.

Before heading to court, you might also want to consider discussing the matter with your ex-spouse informally or through mediation, if possible. Sometimes, a resolution can be reached without involving the court, saving both time and resources.

In many cases, if the person receiving the spousal maintenance gets remarried, the obligation for spousal maintenance often ceases. Cohabitation can also potentially impact the spousal maintenance, though it’s a bit more nuanced. The court might look into factors like the financial arrangements in the new relationship, how long they have been living together, and how the new relationship affects the financial needs of the person receiving the maintenance.

If the paying spouse hits a financial rough patch, like losing their job or experiencing a notable dip in their income, it can indeed affect the spousal maintenance arrangement. The paying spouse can approach the court to seek a modification to the original order, maybe to lessen the amount they need to pay temporarily or permanently, depending on the circumstances.

But, keep in mind, the court always tries to strike a balance – they’d look into the financial needs of the person receiving the maintenance as well before making any decisions.

Couples have the flexibility to draft prenuptial or postnuptial agreements, which are technically known as Binding Financial Agreements (BFAs), where they can stipulate the financial arrangements they prefer, including waiving rights to spousal maintenance.

It’s quite a nuanced process and the court’s aim is to ensure that all financial obligations, including child support and spousal maintenance, are balanced and reasonable for both parties.

It’s crucial to note that appeals are usually based on grounds of legal errors or incorrect facts assumed by the court, not simply because you’re unhappy with the decision.

To initiate an appeal, you would need to file a Notice of Appeal, generally within 28 days from the date the order was made. This process can be a bit intricate, as you would be required to clearly detail the grounds on which you are basing your appeal, presenting arguments that establish how the initial judgement was flawed and legal advice is highly recommended in these circumstances.

If there’s a significant change in circumstances – like a substantial change in income, a serious illness, or maybe even a new marriage or cohabitation situation, the affected party can approach the court to seek a modification of the existing spousal maintenance order.

But, to get a modification, you need to clearly demonstrate that the change in circumstances is substantial and makes the existing order unreasonable.

You will need to file an application with the Family Court of Western Australia to vary the maintenance order. This application should clearly set out the change in circumstances and explain why a modification is necessary.