If the Court makes a spousal maintenance order that is ongoing rather than for a limited time, it is sometimes the case that a party will seek to end the Order. This might involve changing the spousal maintenance order, or alternatively, ending it altogether.
Section 82 of the Family Law Act provides that an Order for spousal maintenance ceases if the spouse receiving the spousal maintenance dies, and in most cases, if the person who is supposed to pay the spousal maintenance dies. It is also the case that if the party who is receiving spousal maintenance remarries, then the obligation to continue to pay spousal maintenance ceases, and any spousal maintenance paid after the re-marriage is a debt that will need to be paid back.
It is possible to seek that the Court vary the Order, including to end it, stop it for a period in part or in whole, re-start an order that has been stopped for a period, or change it to increase or decrease the amount to be paid.
Where there is an application to change the amount of spousal maintenance paid, the Court have to be convinced that:
- the circumstances of one of the people have changed that it is justified to change the Order;
- That since the order was made, the cost of living has changed such that changing the order is justified;
- That the order was made by consent and is not high enough to be proper or adequate; or
That material facts were withheld from the Court that made the Order. This is why getting your disclosure right is so important!
Similar provisions apply in circumstances where parties were not married, but were in a defacto relationship.
If you have a spousal maintenance order that you think should be changed, the usual process is that you will need to file an application in Court, seeking that the Order be changed, and you will also need to file an Affidavit. Once you have completed and filed the documents, they will need to be effectively served upon the other party, who will then have an opportunity to respond to the Application.
As with any application, it is advantageous to have legal advice before you file – because there may be costs implications if the application fails in Court. If you have a spousal maintenance Order that you think should be changed, call us to make an appointment for advice today.