An issue facing many elderly couples is when they become involuntarily separated from each other because of their declining physical or mental health.  This is most common when one spouse is moved to a nursing or aged care facility and out of the marital home.

It is useful for family members of elderly individuals to be aware that a spouse may be able to make an application to the Family Court for spousal maintenance to be paid to them in order to meet the cost of their assisted care even if their relationship is intact but they are physically separated.  If the spouse is not able to make the application themselves because of lack of mental competency a family member may do this on their behalf as their case guardian.  Lump sum spousal maintenance may also be an option.

Such an application may be relevant in the following circumstances:

1. Where the competent spouse is not willing to financially maintain their spouse who requires financial assistance through the payment of their reasonable cost of their assisted living. A reasonable cost may include a facility which maintains a standard of living to which the spouse has become accustomed throughout their life.

2. Where adult children or family members of one spouse have control over their assets through an Enduring Power of Attorney and are not authorising or providing financial assistance to the spouse requiring maintenance. These types of situations commonly arise where a couple who have children from previous relationships are not supportive of their parent’s assets being used to maintain the spouse in their final years and do not authorise the financial assistance.  This usually occurs when the spouse who has the ability to maintain their spouse from whom they are involuntarily separated does not have the mental capacity to understand the decisions being made on their behalf by their adult children.

In the High Court case of Stanford & Stanford [2012] HCA 52 (Stanford), the High Court noted when considering the concept of  “breakdown of the marriage”, the bare fact of separation does not necessarily give one party the ability to bring an application to alter the legal ownership of assets that currently exists between the parties, that is a property settlement. However, a spouse maintenance application may be appropriate to meet their needs.

These cases whilst unfortunate are becoming more frequent with the rise of modern families which can create unhappy family dynamics.  If you believe that your family member is not receiving adequate financial maintenance in the elderly years, our team of family law solicitors are able to advise you.