The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

3.1.5 Spousal & de facto maintenance orders

Context

The FL Act and the Family Court Act 1997 (WA) provides for a court to make orders for a person to pay financial support for their spouse or former spouse. This is called spousal maintenance. The court may also order a person to pay maintenance to a de facto partner, or former de facto partner.

Act references

FL Act Part VIII, Part VIIIAB

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 Schedule 2

CSRC Act section 18

Family Court Act 1997 (WA) section 205ZC, section 205ZD

On this page

Spousal maintenance

Section 18(1) of the CSRC Act provides that a spousal maintenance order made by a court is a registrable maintenance liability.

Who can apply for spousal maintenance?

A party to a marriage can apply for spousal maintenance, even if the marriage has been dissolved or is void (FL Act sections 71 and 72).

From whom can spousal maintenance be claimed?

Spousal maintenance can be claimed from the other party to the marriage (FL Act section 72).

How can a spousal maintenance order be changed?

A court can vary a spousal maintenance order in further proceedings between the parties about spousal maintenance (FL Act section 83).

When does a spousal maintenance order end?

FL Act section 82 provides that a spousal maintenance order ends:

  • when the payee dies
  • if the payee remarries (unless the court orders that payments should continue because of special circumstances), or
  • when the payer dies (unless the court made an order for lifetime maintenance before 1983).

How can I recognise a spousal maintenance order?

A spousal maintenance order typically has a clause similar to:
The husband is to pay the wife maintenance for herself in the sum of $75 per week.

De facto maintenance

Section 18(2) of the CSRC Act provides that an order made by a court for a party to a de facto relationship to pay a periodic amount for the maintenance of the other party to the de facto relationship is a registrable maintenance liability.

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 amended CSRC Act section 18 to include the liability of a party to a de facto relationship to pay periodic maintenance to the other party of the de facto relationship as a registrable maintenance liability. This took effect from 1 March 2009 and applies to maintenance liabilities arising on or after that date.

Note: The South Australian Parliament passed the Commonwealth Powers (De Facto Relationships) Act 2009, referring its powers regarding de facto couples to the Commonwealth from 1 July 2010.

Orders made under the Family Court Act 1997 (WA)

The West Australian Parliament adopted the amendments made to the CSRC Act by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act on 3 March 2011. This means the Registrar can register a de facto maintenance liability made under the Family Court Act 1997 (WA) from this date. See 1.3.2.30 for details of the date from which various provisions had effect.

Who can apply for de facto maintenance under the FL Act?

From 1 March 2009 a party to a de facto relationship that has broken down can apply for maintenance (FL Act section 90SE). A court can only make an order if satisfied that at least one of the following conditions exists (FL Act section 90SB):

  • the relationship was of at least 2 years duration
  • there is a child of the relationship
  • the applicant made substantial contributions to the relationship and a failure to make the order would result in serious injustice to the applicant, or
  • the relationship is or was registered under a prescribed law of a state or territory.

Party to a de facto relationship

A person is in a de facto relationship with another person if (FL Act section 4AA):

  • the persons are not legally married to each other
  • the persons are not related by family, and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

This definition of de facto relationship includes relationships between 2 persons of different sexes and relationships between 2 persons of the same sex (FL Act section 4AA(5)).

From whom can de facto maintenance be claimed?

De facto maintenance can be claimed from the other party to the de facto relationship (FL Act section 90SF). Under FL Act section 90SS a court can make various orders regarding maintenance including orders for lump sum payments, transfer of property and periodic payments. It is only orders for periodic payments that can be registered for enforcement by the Registrar.

How can a de facto maintenance order be changed?

A court can vary a de facto maintenance order in further proceedings between the parties about de facto maintenance (FL Act section 90SI).

When does a de facto maintenance order end?

FL Act section 90SJ provides that a de facto maintenance order ends:

  • when the payee (i.e. the party entitled to receive the maintenance) dies
  • if the payee marries (unless a court orders that payments should continue because of special circumstances), or
  • when the payer dies.

How can I recognise a de facto maintenance order?

A de facto maintenance order typically has a clause similar to:
Party A is to pay de facto maintenance to Party B in the sum of $100 per week.

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