Maintenance
There is a general duty on each of the spouses to maintain each other and their children. The primary concern for Family law is the obligation to maintain in the context of marital breakdown.
What is a Maintenance Order?
A maintenance order is basically an order that one spouse makes periodic payments to the other of such amount and frequency as the court directs.
When and how can Maintenance be sought?
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Applications simpliciter
This is where the only relief being sought is maintenance. This is only available for spouses; there is no legislative provision for cohabitees.
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Ancillary to Judicial Separation/ Divorce
Maintenance can also be ordered as ancillary relief subsequent to a Judicial Separation and Divorce. In these cases it is called an order for periodic payments.
Basis of Assessment?
The applicant spouse must establish that the other spouse has failed to provide such maintenance as is proper in the circumstances. The court then decides what maintenance is proper in the circumstance but has particular regard to the basic criteria set down the relevant legislation;
- The income, earning capacity, property and financial resources of each party
- The financial and other responsibilities of each party
- The conduct of each of the spouses.
In general it is a mix between the needs of the applicant spouse and children and the resources of the respondent spouse.
Are Maintenance Agreements possible?
Yes. Parties can reach agreement in the amount of payment to be made either as part of a more comprehensive separation agreement or an agreement relating solely to maintenance. But an agreement that entails a lump sum payment in an attempt to effect a ‘clean break’ is prohibited.