COVID-19 & FINANCIAL SUPPORT – HOW DO I GET IT?
Financial support from your former spouse or partner in family law matters, referred to as ‘maintenance’, is nothing new. However, the COVID-19 pandemic is creating a challenging environment for households – financial uncertainty, job losses and illness. We are often approached for urgent advice from many clients asking about their legal right to financial assistance in these circumstances.
If you require financial support and your former partner can assist you financially, but is not willing to do so, our Family Law system can help.
Recently, where a former spouse refused to provide financial support we assisted by successfully obtaining an Order from the Family Court for our client to be paid an amount each week from her former husband, with that payment to continue indefinitely until a Final Hearing. The benefit of that Order to our client (and her child) in the present financial climate is significant.
DO YOU HAVE A ‘NEED’?
In determining what Order, if any, should be made, the Court is required to consider firstly the “need” of the party seeking the financial assistance. Some relevant factors include:-
- What income the party receives? Importantly, the Court is unable to take into account an income tested pension, allowance or benefit;
- What expenses are incurred, such as weekly costs for food, a motor vehicle, telephone, entertainment costs, children’s costs, gym, health and beauty, holidays and the like;
- Whether the party was financially supported by the other party during the relationship;
- Whether the party has the care of children, or another person;
- The age and health of the party;
- Whether the party is able to work greater hours, or re-enter the workforce if they have had time away from paid employment during the relationship;
- A standard of living that in all the circumstances is reasonable.
If the Court is satisfied that from these factors that the party has a “need” for financial assistance, it is then required to consider whether the other party has the “capacity to pay”.
CAPACITY TO PAY
The Court will make an assessment of a party’s “capacity to pay” based on the financial obligations of that party. When considering a party’s financial obligations, or their capacity to pay, the Court may take into account a number of factors, including:
- Their property, income from all sources and their financial resources available;
- The use to which that person is applying their income;
- The factors listed above, including their age, health and whether they have the care of children or another person.
When considering a party’s expenses the Court can make an assessment as to the reasonableness of those expenses. For example, the Family Court found in favour of our client, awarding her a certain amount in maintenance week, as the Court found that our client‘s former spouse was applying income towards new or unnecessary expenses to keep funds out of reach of our client, by paying for renovations and depositing additional funds into the mortgage.
Ultimately, the Family Court is required to make orders which are ‘fair’, or ‘just and equitable’ in the circumstances.
Each family, and each separation, is unique. It is important that you obtain expert Family Law advice when you separate or divorce in order to obtain your best outcome and settlement, and an outcome which is fair.
MEDIATION, OR COURT?
Our team of Family Law experts will assist you, providing you with strategic, expert and timely advice.
The majority of family law disputes fortunately settle without Court intervention. If an agreement cannot be reached between couples the alternatives available include:
- Arbitration; and
- Collaboration between Lawyers.
If you require assistance, we are available using a number of platforms – telephone, Skype, Zoom, Teams, Facetime.
Otherwise, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or firstname.lastname@example.org for a confidential discussion.
Dorter Family Lawyers and Mediators offers expert family law advice in McMahons Point on Sydney’s Lower North Shore.
This post is an overview only and should not be considered as legal advice. If there are any matters that you would like us to advise you on, then please contact us.