By Matt Kearins
Entering into a relationship can often impact the way you live your life. What’s mine is yours, and what’s yours is mine, becomes a part of daily life. Some people also choose to leave the workforce as part of their relationship.
But what do you do when the relationship break down? What if the relationship only lasted for a few years? What do you do now?
In Australia, parties to a marriage, or a de facto relationship, may be entitled to spousal maintenance under the Family Law Act 1975. Under Section 72 of the Act, a spouse is liable to maintain the other spouse to the extent that they are reasonably able to do so. This is if the other spouse is unable to support themselves. Section 90SE of the Act covers the same area for de facto couples.
The Court is unlikely to make orders for spousal maintenance simply because a relationship has ended. There are several factors that must be considered before granting spousal maintenance. This includes Section 75(2)(k) regarding the duration of the marriage and how it has impacted the earning capacity of the parties. Section 90SF(3)(k) covers the same factor for de facto couples
A ‘short relationship’ in Australia is often considered to be one that has lasted less than 5 years. It is often the case that the longer the marriage or relationship, the more likely their earning capacity has been impacted. But this doesn’t mean short relationships aren’t able to argue their earning capacity has been impacted.
Hirst and Rosen (1982) FLC 91-320
In this case, his Honour Nygh J. determined that the word ‘duration’ was never intended to prevent short marriages from applying Section 75(2)(k). Instead, the focus should be placed on how the duration of the marriage has impacted the earning capacity of the parties. His Honour went on to add:
“I would suggest that (paragraph) k is directed to deal with the situation where a woman has had her earning skills eroded as a result of the duration of the marriage, as a result, in other words, of having left the work force to perform the role of a housewife and/or mother for a considerable period of time.”
An example of a short marriage that could rely on Section 75(2)(k) would be one where over the course of the marriage the wife has given birth to children and has since left the workforce to become a full-time mother. This would have a significant impact on the wife as she now has to contend with the gap of experience in her resume, her time out of the workforce, and the obligations of raising her children.
If you’ve been a part of a short relationship and you feel it has impacted your earning capacity contact Hansons Lawyers immediately. Duration and impact on earning capacity are simply one of several factors that could assist you in seeking spousal maintenance.
It is crucial you act quickly as former spouses to a marriage have 12 months from the date of divorce to apply for spousal maintenance. This period extends to two years after the final separation for de facto partnerships.