Engaging a divorce lawyer when separating from your partner can be daunting. It is important that you understand your legal rights relating to your financial position both in your relationship and moving forward.
The Principle
It is in the Court’s view that it should seek “as far as practicable (to) make such orders as will finally determine the financial relationships between the parties…and to avoid further proceedings between them.” This is referred to as the ‘clean break’ principle under s 81 of the Family Law Act or s 90ST for de facto parties. Specifically, a divorce lawyer will tell you that the general approach of the Court is to avoid issuing long term spousal maintenance orders. In other words, spousal maintenance is not and should not be ordered with the intent that it be payable for life. Instead, it is designed as a temporary order to allow parties to restructure their finances and or living expenses. For example, a spousal maintenance order can be made to cover a period where the party is completing coursework or training which enables him or her to re-enter the workforce.
Cases
The Full Court noted in Best [1993] that in the past ‘the ‘clean break’ principle has been taken to extremes…and requires careful reconsideration in light of evolving economic and social circumstances and values’. As cases have shown, on top of a property order, spousal maintenance generally exists for a specific period. In D & D (Unrep) [2003], the period was 9 months + 2 months until payment of property settlement. In Matthews [1980], a lump sum was issued to cover a two year transition for a party to ‘make decisions and arrange investments.’ However, there have been cases such as Kearney [1990], Bevan [1993] and Ramsay [1997] where maintenance was awarded for an unlimited period.
Seeking financial arrangements after separation can be difficult if the relationship is not amicable. If you are entitled to a spousal maintenance claim or think your spouse’s financial position may contribute to settlement then seeking advice from a divorce lawyer is key.
