Child Support and Spousal Maintenance
Child Support
This arises where one or both parties to
a marriage are working and they bear a liability either to the
other party of the marriage or each other to maintain a
child/children of the marriage. Child support is almost
the exclusive preserve of the Child Support Agency which will
assess the amount of child support payable in the
circumstances.
Spousal Maintenance
Spousal maintenance is not an automatic
right and only arises where one party to the marriage
bears a liability to maintain the other. To avoid court
action both parties are required to make a genuine effort to
resolve their differences. These pre-action procedures
specifically apply to financial cases (property settlement and
maintenance). Parties are expected to avail themselves of
appropriate means unless there are good reasons for not doing
so. Some of these reasons are urgency, family violence, fraud,
an intractable dispute, undue prejudice or time expiring.
Where a case is subsequently started the court may consider
whether the requirements have been met and, if not, what
consequences there should be if any.
People need money to live and where their
circumstances change following a marriage breakdown they are
entitled to apply to the court for appropriate orders where
they are cut off from support by the other party and they have
tried to comply with the courts pre-action procedures or where
this has been rendered impossible due to particular
circumstances. The court may make any order for spousal
maintenance which it considers proper. It can make an order
for periodic maintenance or for a lump sum. Of course this may
be agreed between the parties prior to separation, following
separation or when an application for final orders is
made.
The court considers a number of matters
when determining whether it is appropriate to make a
maintenance order. The court takes into account the need
of the applicant and the ability of the other to provide
support. The test is one of reasonableness to support
and only where the other party is unable to support themself
adequately due to:
-
having the care and control of a
child under 18
-
age, physical or mental incapacity
for appropriate employment
-
for any other adequate reason as set
out in the Family Law Act
When the courts consider capacity to pay
they look at affordability and comparative living standards
both pre and post separation. Orders can be applied for at any
time up till the time that final orders are made and they may
be varied as necessary. Maintenance must be applied for within
12 months of a divorce becoming final. To do differently is
unwise, misinformed, expensive and difficult as the court has
to be convinced that special circumstances apply in the
applicant's case.
It is normal with spousal maintenance for
this to be included by many people as part of their property
settlement. Spousal maintenance is only available to
married partners. No one can afford to embark on a course of
action in this regard unless you obtain informed legal advice
to assist you with the process.
Other Family Law service
areas:
Contact LAC
Family Lawyers now to make an appointment at an office near
you.
|
