COVID-19 | Spousal Main­te­nance Appli­ca­tions and Mod­i­fi­ca­tion of a Spouse Main­te­nance Order

The health and eco­nom­ic chaos caused by COVID ‑19 has already proven to be far reach­ing in Aus­tralia and through­out the World. The over­all eco­nom­ic impact and evo­lu­tion of the virus is still unknown. Aus­tralia, for now, appear to have deflect­ed the dev­as­tat­ing health cri­sis expe­ri­enced in oth­er coun­tries, how­ev­er, for many the finan­cial impli­ca­tions are par­tic­u­lar­ly acute and may be long last­ing. If you have also recent­ly sep­a­rat­ed from your spouse or part­ner, then you may also be expe­ri­enc­ing fur­ther finan­cial challenges. 

Changes in an indi­vid­u­al’s finan­cial cir­cum­stances may have result­ed in the loss of employ­ment by the forced clo­sure of a busi­ness or a reduc­tion in busi­ness rev­enue or invest­ments. Ensur­ing that you have ade­quate finan­cial sup­port from your for­mer spouse or part­ner and access to prop­er­ty is now more so impor­tant in light of the eco­nom­ic uncertainties. 

Under the Fam­i­ly Law Act a par­ty to a mar­riage is liable to main­tain the oth­er par­ty to the extent that they are rea­son­ably able to do so, pro­vid­ed that the oth­er par­ty is unable to sup­port them­selves. Some fac­tors the Court looks at when deter­min­ing whether a par­ty should receive sup­port include whether they have the care of a child of the mar­riage or whether, due age or a phys­i­cal or men­tal inca­pac­i­ty, they are hav­ing dif­fi­cul­ties find­ing gain­ful employ­ment. Put sim­ply, spousal main­te­nance is weigh­ing up a par­ties need against the oth­er par­ties capac­i­ty to meet that need. 

The loss of income due to COVID-19 may be rel­e­vant to a spousal main­te­nance claim in so far it relates to a par­ties need for spousal main­te­nance or a par­ties abil­i­ty to pay spousal main­te­nance. This area of law can be com­plex, par­tic­u­lar­ly if it involves com­plex cor­po­rate struc­tures and trusts. It is there­fore essen­tial that spe­cial­ist advice is obtained to ensure the suc­cess of any appli­ca­tion, in the event a nego­ti­at­ed out­come is not possible. 

Sim­i­lar­ly, it is also impor­tant to ensure that any pre-exist­ing sup­port oblig­a­tion such as a spouse main­te­nance or child sup­port order, is prop­er and mea­sured against the capac­i­ty of a par­ty to meet that oblig­a­tion. If there has been a reduc­tion in a par­ties income or earn­ing capac­i­ty, then a mod­i­fi­ca­tion of the order may be necessary 

Any mod­i­fi­ca­tion of an order will not occur unless the Court is sat­is­fied that there has been a change in one of the par­ties cir­cum­stances to jus­ti­fy a change. A decrease or loss in income will be rel­e­vant in seek­ing a mod­i­fi­ca­tion, how­ev­er, it also depends on the extent and dura­tion of the reduc­tion in income. Appli­ca­tions to set Order aside can be expen­sive, and there­fore a nego­ti­at­ed set­tle­ment should be pur­sued first. Spe­cial­ist advice is rec­om­mend­ed in the event you seek to mod­i­fy a Spouse Main­te­nance Order. 

Swaab and the Fam­i­ly Court con­tin­ue to oper­ate dur­ing the COVID-19 pan­dem­ic and are still advis­ing clien­t’s, assist­ed by Microsoft Teams and Zoom.