Financial support and sustenance remain a paramount concern for a separating spouse. The situation becomes severe when one of the spouses suffers from family violence and has no independent source of income. Such a situation is observed in migrant families more often and in the cases where the wife is a home-maker and confined to home duties, is dependent on the monies earned by the husband for day to day financial requirements and is unable to support herself/himself independently and adequately. The situation becomes grim when the needs of the small children can’t be attended to.
The family law in Australia provides for a comprehensive framework to address and resolve such distress situations and mandates that a party to a marriage is liable to maintain the other party to the extent the financially capable party is reasonably able to do so. The incapacity to support could either be by reason of age, physical or mental or appropriate gainful employment. There are a number of factors which are considered to determine the interim maintenance including the age, education, financial resources, income and property, financial needs and obligations, distress in circumstances of the party as a consequent of separation, eligibility to obtain government allowance or benefit from the Australian government, duration of the marriage, and an adverse impact on the earning capacity of the spouse as a consequence of the marriage. Consideration is given to the financial circumstance of the new cohabiting partner. Additionally, the court may consider any other fact or circumstance which it may find relevant in the given particular case. This all requires a detailed look into the financials and evidence before such an order is made.
Some people are faced with a situation where the financial need is imminently urgent, and it is not practicable to determine what order for payment is required to be made. As a stop gap arrangement, an urgent order for lump sum and / or a monthly payment can also be made to assist with an immediate need till the evidence of the parties can be otherwise looked into and a judicious determination made. This demonstrates a clear difference in the concept of interim and an urgent maintenance.
Urgent spousal maintenance is usually made in circumstances that could be considered an emergency and when there is a clear need but no time for the parties to provide evidence. The court generally considers: (a) the immediate need for financial assistance; (b) the practicability of making an order in the circumstances where there is sufficient evidence to justify making an interim or a final maintenance order; and (c) the period of the order, which should be for a relatively short duration.
In an unusual case the wife aged 64 made a claim for urgent spousal maintenance against the husband aged 97 for periodic sum, periodontist fee and proposed dental work by the wife’s dentist. The court considered that the wife had paid some money for the dental work partly received but failed to complete the treatment for lack of money and consequently allowed the payment for immediate dental work. Also, the demand for the costs already incurred in context of relationship, when the urgency arose from the communication for payment of the debt and the additional costs in the event of non-payment of the debt was held to meet the criteria for making an order.
The assessment of such a request in context depends on the urgency and capacity to make the payment and the criteria remains sharp in contrast with the interim spousal payment.
By: Gurpal Singh is the principal lawyer of Melbourne law firm, Saundh Singh & Smith Lawyers | W: www.sssl.com.au
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