Spousal Maintenance

Following a relationship breakdown, one of the main concerns our clients at Nicholes Family Lawyers is face how they will continue to financially support themselves and their lifestyles.

In situations where our clients cannot adequately support themselves following a relationship breakdown, they may be entitled to receive Spousal Maintenance from their former partner or vice versa. Spousal Maintenance is financial support paid in circumstances where one party has a proven “need” for financial support where they cannot meet their own reasonable expenses from their income or assets, and the other party has the proven “capacity” to provide financial support to that party.

Whilst Spousal Maintenance is not an automatic right, it is based on a premise that, where a need arises, parties to a relationship breakdown have a responsibility to support and maintain each other to the best of their abilities. This responsibility can continue after separation and even after divorce where appropriate.

When determining whether Spousal Maintenance is appropriate, relevant considerations include:

The age and health of the parties;
The parties’ income, property, and financial resources;
The parties’ ability to work;
What is a suitable standard of living; and
If the relationship affected the parties ability to earn an income.

Property (including complex commercial matters)

Nicholes Family Lawyers provide advice and representation to clients in relation to all aspects of property division and settlement between parties to a relationship breakdown, including complex commercial matters.

For the purpose of Family Law, property that can be divided between parties to a relationship breakdown can include real property (such as the parties former matrimonial home), motor vehicles, companies, businesses, shares, cash savings, trusts, inheritances, furniture, antiques, and other household chattels. Superannuation is also treated as property for the purpose of Family Law.

When parties separate, often one of the most challenging aspects of the separation is how the assets of the relationship will be divided. The interests of third parties such as family members, co-owners and business partners, can also be relevant.

Nicholes Family Lawyers aims to help parties settle property matters without recourse to Court. In the event that our clients can agree to a property settlement outside of Court, we provide advice and assistance with preparing Consent Orders to be filed with the Federal Circuit and Family Court of Australia, as well as Binding Financial Agreements.

In the event that parties cannot agree to a property settlement and the matter does proceed to Court, Nicholes Family Lawyers is experienced in providing representation to clients throughout the court process and can provide advice in relation to the relevant consideration by the court when determining the division of property between parties. These considerations are known as a “four step process” which include:

Identifying the parties’ property and liabilities;
Assessing the parties’ contributions throughout the relationship to the property pool and the welfare of the family;
The parties’ current and future circumstances following the separation, including;
– Parties’ age
– State of health
– The care and housing needs of children
Whether the orders are, in all circumstances, just and equitable between the parties.

Superannuation

Superannuation is treated as property for the purposes of Family Law and it is capable of division between parties following a relationship breakdown.

Whilst it is not a mandatory step in every property settlement, parties’ superannuation entitlements can be “split” between them as part of an overall property settlement.

In order to effect a superannuation split, Nicholes Family Lawyers can provide advice and assist parties with preparing superannuation splitting orders and agreements, so that a portion of one party’s superannuation fund can essentially be “rolled over” into the other party’s fund. We can also assist with the division of assets held in self-managed superannuation funds.

Adult Child Maintenance

Generally, child support assessments cease to have effect when the child turns 18, however in certain cases the FCFCOA has jurisdiction to make adult child maintenance orders for children over the age of 18. The primary objective of child maintenance orders is to ensure that children have their necessary needs met based on the parent’s (or in some cases step parent’s) duty to maintain.

Section 66Lof the Family Law Act 1975 (Cth) (FLA) guides implementation of a child maintenance order, and specifically sets out that a child maintenance order can only be provided to a child who is over 18 if the court is satisfied that the ‘provision of maintenance is necessary’:

To enable the child to complete his or her education; or
Because of a disability of the child.

When determining what financial support is necessary for the maintenance of an adult child, the court may consider a range of relevant factors. These include, but are not limited to:

the proper needs of the child;
the age of the child;
the expectations of the parents regarding the child’s education or training;
any special needs the child may have;
any relevant findings from published research relating to the maintenance of children; and
the child’s income, earning capacity, property, and financial resources. This includes the child’s ability to earn or derive income, as well as any assets that are under the child’s control or held for their benefit that may not currently generate income but are capable of doing so.

However, the court must disregard:

the income, earning capacity, property, and financial resources of any other person, unless the particular circumstances of the case make it appropriate to consider them; and
any entitlement of the child or another person to an income-tested pension, allowance, or benefit.

Nicholes Family Lawyers has specialised expertise in adult child maintenance and providing tailored advice as to the considerations the court assesses when determining if adult child maintenance is ‘necessary’. Our firm can further assist in guiding our clients through the factors the court considers when determining the parties’ contribution to the maintenance of an adult child.