Before we can consider the circumstances in which a person can stop paying spousal maintenance, we first need to ask two fundamental questions:
- What is spousal maintenance?; and
- When is spousal maintenance payable?
What is spousal maintenance?
Spousal maintenance is money that is paid by one spouse to the other spouse either as a lump sum or as a periodic payment ie. weekly or monthly. The purpose of spousal maintenance is to make up for any difference in the parties’ incomes or earning capacities and takes into account the needs of both parties.
Spousal maintenance is separate to the issue of property settlement.
When is spousal maintenance payable?
Spousal maintenance may be payable when one spouse (“the applicant”) is unable to support themselves adequately:
(a) by reason of having the care and control of a child of the relationship under the age of 18 years;
(b) due to their age or physical or mental incapacity for appropriate gainful employment; or
(c) for any adequate reason
and the other spouse (“the respondent”) is reasonably able to pay.
If the applicant is able to meet this threshold test, the court will then consider how much spousal maintenance should be paid, whether it should be paid as a lump sum or on a periodic basis and if payable on a periodic basis, how long the order should be for.
Orders for spousal maintenance can be made before a final property order is made (an interim spousal maintenance order or an urgent spousal maintenance order), at the same time a final property is made or after a final property order is made.
An interim order for spousal maintenance can be made when the court considers that the applicant is unable to adequately support themselves pending a final property orders being made and the respondent has the capacity to pay.
A final spousal maintenance order can be made at the same time a final property order is made. In this event, the spousal maintenance application will be determined after the final property order is made. This means that the court will determine the spousal maintenance application in light of the property order that has been made. Depending on what the final property order is, it may be that the applicant’s capacity to adequately support him or herself is improved as a result of the property order that has been made.
As noted above, the spousal maintenance order can be expressed to be payable as a lump sum or as periodic payments to be made for a defined period of time (often 2-3 years) to allow the applicant to retrain and/or find suitable employment to enable them to adequately support themselves.
Where the parties were married, applications for spousal maintenance should be made either before divorce or within 12 months from the divorce order taking effect and in the case of a de facto relationship, within 2 years from the date of separation. Applications filed outside that time period will only be permitted to proceed with the court’s permission.
When can I stop paying spousal maintenance?
- When the order expires
A spousal maintenance order will cease once the predetermined period of the order has come to an end. However, it is important to note that while the order is still in effect, either party can apply to discharge the order if there is a just cause for doing so, or can apply to vary the order.
Before the court can increase or decrease the amount ordered to be paid, the court must be satisfied that:
(a) The circumstances of either the person in receipt of the payments or the person making the payments has changed and such change(s) justifies a variation of the order; or
(b) Since the order was made the cost of living has changed to the extent that it justifies a variation of the order; or
(c) Where the order for spousal maintenance was made by consent, the amount ordered was not proper or adequate; or
(d) Material facts were withheld from the court when the spousal maintenance order was made.
2. When the order is discharged
As mentioned above, a party can apply to discharge the order, before the order has expired.
- When one of the parties to the marriage dies
An order for spousal maintenance will come to an end when either the party paying maintenance or the party receiving maintenance dies. This should be contrasted to a property order which is still enforceable even when one of the parties to the order dies.
- When a party remarries unless a court orders that maintenance should continue to be paid owing to special circumstances.
It is interesting to note that whilst remarriage of the party in receipt of maintenance will usually, but not always, result in the termination of an order for spousal maintenance, the fact that that party may enter into a de facto relationship does not automatically result in the termination of the order.