I can no longer afford to pay Spousal Maintenance pursuant to an Order. What can I do?

I can no longer afford to pay Spousal Maintenance pursuant to an Order. What can I do?

This situation comes up from time to time...

Say you have an Order that was made in the past, that you are to pay spousal maintenance of $600 per week to your former partner.

At the time of the Order being made by the Court, or agreed to by consent, you were working in a high paying job, and you had the capacity to pay the spousal maintenance.

Life has now changed and you can no longer afford to keep paying this amount.

What can you do?

Section 83 of the Family Law Act 1975 (Cth) provides for the modification of spousal maintenance orders.

The Court can:

1. discharge the order if there is a just cause for doing so
2. suspend the operation of the order wholly or in part until a further order or until a fixed time
3. subject to the court being satisfied of the matters set out in s83(2)) - vary the order to increase or decrease the amount ordered to be paid

Varying v Discharging and Order

Varying the spousal maintenance order means, for example, decreasing (or increasing) the amount that has been ordered to be paid.

Discharging the spousal maintenance order means getting rid of it entirely.

Who can ask the Court to Vary/Discharge the Spousal Maintenance Order?

Either the person paying or the person receiving the spousal maintenance can ask to change it.

The parties agree to change or discharge the order, and so this can occur by consent.

If no agreement can be reached, then a party must make an Application to the Federal Circuit and Family Court of Australia to vary/discharge the spousal maintenance order. They will need to satisfy the Court of one of the requirements listed in Section 83 of the Act.

Section 83 of the Family Law Act 1975 (Cth) – Varying a Spousal Maintenance Order.

Basically, the court needs to be satisfied that one of the following applies:

• Your circumstances have changed significantly since the order was made. If you are the person paying, you may need to show a substantial drop in income, serious illness or incapacity, retirement, or financial hardship that affects your ability to keep paying. If you are the person receiving the income, you may need to show you have obtained a new job where you have a significant increase in your income, entering a new marriage or stable defacto relationship, or receiving a large inheritance.

• The cost of living has changed to such an extent as to justify a change in the order.
• If the original order was made by consent, you may need to show the amount is no longer proper or adequate
• If material facts were withheld from the court when the original order was made, or false evidence was given.

Spousal maintenance also automatically ceases if the person receiving the maintenance remarries.

If the person receiving the maintenance cohabits, the court would likely reduce or terminate the order. However, it is not automatic.

Do you need to go to Court to change/vary the Order?

No. If you and your former partner agree to change the order, this can be documented in Consent Orders that are drafted, signed and sent to the Court without the need to attend Court.

Where you cannot agree, the Court will need to decide whether to discharge the order.