INTRODUCTION
8.1 The Property (Relationships) Act 1984 (NSW) (“the PRA”) creates a limited entitlement to partner or spousal maintenance. In this chapter, we review that part of the PRA and examine how the maintenance provisions have operated since 1984.1 We also discuss the implications of the extension of the maintenance provisions to a broader category of relationships following the 1999 amendments to the PRA. After reviewing the rationale and objectives of partner maintenance, or “spousal” support, we consider options for reform.
PARTNER MAINTENANCE UNDER THE PRA
8.2 The Property (Relationships) Legislation Amendment Act 1999 (NSW) (“the 1999 amendments”) did not alter the substantive content of the maintenance provisions that existed under the De Facto Relationships Act 1984 (NSW).2 However, the scope of the legislation was considerably broadened. Those in “domestic relationships”, which includes same-sex and heterosexual de facto partners, and those in close personal relationships as defined in the PRA, are now covered.3 As a consequence, the PRA applies to a more numerous and diverse range of relationships than was the case when the original legislation was enacted in 1984.
No general right to maintenance under the PRA
8.3 The PRA provides expressly that a party to a domestic relationship is not generally liable to maintain the other, nor to claim maintenance from the other, except in accordance with the limited exceptions set out in Division 3 of the PRA.4 The criteria for awards for maintenance under the PRA are set out later in this chapter. This narrow approach stems from a concern the Commission expressed in its 1983 report that unmarried partners, unlike their married counterparts, should not have a general duty to support each other after their relationship ends.5 Under the Family Law Act 1975 (Cth) (“the FLA”), a spouse is liable to maintain the other to the extent that he or she is reasonably able to, if that party is unable to support him or herself adequately.6 This provision is based on the twin criteria of one party’s need and the capacity of the other to pay.
Limited right to maintenance under section 27
8.4 Only parties to domestic relationships that have lasted for more than two years are eligible to make a claim for maintenance.7 An application for maintenance must be made within two years of the domestic relationship ending.8
8.5 The PRA provides two limited bases for the award of partner maintenance.9 An applicant for partner maintenance must demonstrate that he or she is unable to support himself or herself adequately because:
- he or she has the care and control of a child of the relationship, or a child of the respondent, provided the child is under 12 years (or 16 if the child has a disability);10 and/or
- his or her earning capacity has been adversely affected by the circumstances of the relationship and, in the court’s opinion, maintenance would assist the applicant’s earning capacity by allowing the person to undertake training or study and it is reasonable to make the order.11
8.6 These categories are sometimes described respectively as “custodial” maintenance and “rehabilitative” maintenance. While the Act specifically contemplates that a claim may be based on both of these grounds,12 it has been held that such an action is a contradiction in terms. In Todoric v Todoric, Justice Powell concluded that such a claim contained an “air of incongruity” because “an assertion that one needs, and wishes to retrain in order to obtain full-time employment would seem to deny the validity of any assertion that the demands of caring for children render one incapable of seeking, or taking up, full-time employment.”13 However, this interpretation has been criticised as being inconsistent with the explicit statutory intention.14
8.7 The PRA provides that the court must have regard to a number of matters when determining an application for maintenance.15 Specifically, decisions under the PRA have emphasised the importance of:
- the employment and financial situation of both parties;16
- the financial position of the person being maintained, having regard to social security benefits or compensation payments;17
- whether maintenance would enable the recipient to acquire qualifications sought to assist financial independence;18 and
- whether the inability to support oneself flows exclusively from the ground selected and is not affected by other circumstances as well.19
8.8 Generally, maintenance decisions under the PRA reflect the view that maintenance should be awarded only in exceptional circumstances. In Todoric, for example, the court refused to award maintenance because the training course nominated by the applicant would not necessarily lead to full-time employment, and could not be completed within the time period prescribed by the PRA during which the applicant is eligible for rehabilitative maintenance.20 There is considerable empirical evidence showing that partner maintenance is rarely claimed or received.21
Duration of maintenance
8.9 The PRA places clear limits on the duration of any maintenance order. Where a person seeks maintenance on account of having responsibility for a child of the relationship, maintenance is available only until the child turns 12 years of age or, in the case of a child with a disability, 16.22 For rehabilitative maintenance, support is available for up to 3 years after the court order is made, or 4 years after the end of the relationship, whichever is shorter.23
8.10 By contrast, other legislation that provides for maintenance does not specify any time limit on the duration of a maintenance award.24 As yet, there is no case law from that jurisdiction, and it is unclear how such open-ended liability will be interpreted.
The effect of repartnering on maintenance
8.11 The PRA provides that a person who has entered into a domestic relationship with another person, or has married or remarried, may not claim maintenance from his or her former partner.25 This assumes that the purpose of maintenance is to address any financial disadvantage that flows from the breakdown of marriage or a similar relationship, and that this financial disadvantage disappears once a person repartners. Professor Owen Jessep has questioned the rationale for ceasing to make maintenance available once the recipient repartners, noting that “since the reason for seeking maintenance must flow from the previous relationship, it is not clear … why the claim should automatically be barred as soon as a new relationship is formed”.26
8.12 Whether or not the repartnering provision is appropriate for de facto relationships under the PRA, it does not appear to be relevant to close personal relationships:27
Take a situation where a woman separates from her de facto partner, is caring for their young children, and then brings her ailing mother home so that the mother can be cared for. As the woman now has a “close personal relationship” with her mother, she cannot seek maintenance for herself against her former partner. This does not make any sense at all.28
8.13 Of those States and Territories that have statutory provisions governing maintenance,29 the ACT is the only jurisdiction that does not treat marriage or repartnering as an absolute bar to maintenance. Instead, marriage or repartnering is listed as a factor that might be considered relevant when assessing the financial resources or financial needs of the applicant,30 or when determining an application to vary an order based on a change of circumstance.31
The type of maintenance: periodic or lump sum?
8.14 If an applicant for maintenance satisfies the criteria set out in the PRA, the court can award either periodic or lump sum maintenance. Under the PRA, the court is directed “so far as is practicable [to] make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them.”32 Since there have been few applications for maintenance under the PRA, it is difficult to discern any clear preference on the part of the court for either lump sum or periodic maintenance awards. In Keene v Harkness, Master McLaughlin rejected an application for periodic maintenance expressly on the ground that the PRA directed the court to avoid making an order that would not “finally determine the financial relationships between the parties and could possibly be a source of further proceedings between them.”33 However, the Court of Appeal disagreed, noting that if “s 19 [of the PRA] were to be applied in this fashion then courts would never be able to make orders for periodic maintenance.”34 In that same case, the Court of Appeal expressed reservations about ordering a person to make periodic payments where to do so may be “unduly restrictive”, particularly where the payer is of limited means.35
8.15 Looking to the federal level, the Family Court addresses the same problem. It assesses whether an order for lump sum maintenance under the FLA would be impracticable in the circumstances; for example, where there are few assets but the payer has a high earning capacity.36 The power to order lump sum maintenance has been described as:
a power to be exercised cautiously. … In particular, uncertainty about future events explains this approach, and capitalisation of maintenance would rarely be justified where there is no genuine concern about the capacity and preparedness of the payer to comply regularly with a periodic order.37
8.16 Lump sum awards of maintenance provide some clear advantages. Problems of enforcement, for example, are avoided. This may, in turn, also reduce litigation costs and antagonism between the parties. Lump sum orders may be particularly appropriate where the payer has significant assets that can be divided.38 A lump sum payment, as opposed to periodic payments, might also permit the payee a greater degree of financial independence. For example, a lump sum payment might facilitate the purchase of a home for the payee (and perhaps thereby assist in rehousing the payee and any children for whom she or he might be responsible). It has also been suggested that lump sum payments may make it easier for the payee to qualify for social security benefits than would be the case with periodic payments.39
Interim/urgent maintenance
8.17 The PRA currently makes provision for interim maintenance to be granted where “it appears to the court that the applicant is in immediate need of financial assistance”40 pending the determination of the maintenance application. The economic costs of relationship breakdown are felt hardest immediately after separation, particularly for the partner who has no independent income.41 They are quite often unable even to meet short-term living expenses, let alone afford to bring proceedings for property division or maintenance. As Jessup points out, this type of maintenance is “clearly concerned with urgent as opposed to interim maintenance”42 and would be one of the most compelling aspects of maintenance worth retaining.
Power to discharge or vary an award
8.18 A court may vary or discharge a periodic maintenance order if it considers that either a change in the circumstances of one of the parties, or a change in the cost of living, justifies doing so.43 The court also has the power to vary any order for financial adjustment where there has been a “miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance”, where it is impracticable for an order or part of it to be carried out, or where a default by a party makes it just and equitable for a court to do so.44
Incidence of partner maintenance
8.19 There have been very few maintenance orders sought under the PRA. Of those applications that have been made, few have been successful, either in establishing an award of maintenance at all or in securing the amount of maintenance requested.45 Recently published data from the Australian Institute of Family Studies (AIFS) Australian Divorce Transitions Project suggests that over the past decade, periodic spousal support has been awarded in fewer than 7% of cases involving financial arrangements made on the breakdown of marriages.46 While there is no equivalent research data on the incidence of maintenance on the breakdown of de facto relationships, a review of the (reported and unreported) case law in NSW suggests that the incidence of awards for maintenance is much lower than under the FLA.
8.20 In their research into the incidence of spousal maintenance under the FLA, Behrens and Smyth found that “periodic support continues to be rare, minimal and brief,”47 noting that solicitors rarely advise their clients to seek maintenance. Such advice may well be informed by a pragmatic assessment that a claim will probably be unsuccessful, given the limited statutory basis coupled with restrictive interpretations that have been taken by courts.48 Behrens and Smyth suggest that, at least under the FLA, solicitors are more likely to advise their clients to opt for a greater share of the property.49
Private maintenance agreements
8.21 As well as providing the court with the power to make orders for maintenance, the PRA provides that parties may make their own agreements with respect to their financial affairs.50 This includes making provision for the maintenance of either or both of the parties.51 So long as the agreement satisfies certain requirements under the PRA, the court cannot make an order inconsistent with the terms of the agreement.52 The agreement must, for example, be in writing, signed by both parties and each party must have obtained a certificate of independent legal advice as attested to by a solicitor, which must be attached to the agreement.53 Agreements may be varied or set aside according to statutory or common law contractual grounds.54 Domestic relationship agreements (but not termination agreements)55 may also be varied or set aside if the court believes that the circumstances of one or both of the parties have so changed since the agreement was made that enforcing the agreement would lead to serious injustice.56
PARTNER MAINTENANCE IN OTHER JURISDICTIONS
Australia
8.22 Until recently, the other States and Territories that have created statutory maintenance provisions for de facto partners tended to mirror the narrow approach found in the PRA.57
8.23 In the ACT, the maintenance provisions under the Domestic Relationships Act 1994 (ACT) apply to domestic partners. This includes those in heterosexual and same sex couple relationships,58 as well as other interdependent relationships.59 The Western Australian legislation has been introduced which applies to heterosexual and same sex de facto relationships, and mirrors the provisions of the FLA regarding partner maintenance.60
8.24 The Tasmanian and Northern Territory statutory schemes apply only to heterosexual de facto relationships.61 The Tasmanian legislation does, however, provide the broadest scope for the award of maintenance.62 Section 23(1)(b) enables the court to consider “any other reason arising in whole or in part from circumstances of the de facto relationship” when deciding whether the applicant is unable to support himself or herself adequately in the decision to grant partner maintenance.63 This reflects more fully the approach taken in the FLA.64
8.25 By contrast, the Property Law Amendment Act 1999 (Qld) does not provide for partner maintenance.65 It creates a statutory regime for adjustment of property interests, and applies to both heterosexual and same sex relationships.
Overseas jurisdictions
Canada
8.26 In Report 36, the Commission considered laws in a number of Canadian provinces that enabled de facto partners to apply for maintenance on the breakdown of relationships.66 Notable amongst these was Ontario, whose relevant partner support provisions were recently considered by the Supreme Court of Canada in M v H.67 It was held that Ontario’s Family Law Act violated section 15 of the Canadian Charter of Rights and Freedoms because the definition of spouse in the partner support provisions included unmarried heterosexual couples living in “conjugal relationships”, but did not include those in same sex relationships. The Supreme Court directed the province to ensure that its legislation complied with the Charter, and in response to that decision, the province of Ontario passed an omnibus law reform statute that amends some 67 laws that refer to spouses or marital status, extending the application of those laws to cohabiting same sex partners.68
New Zealand
8.27 The Family Proceedings Act 1980 (NZ) was recently amended69 to insert extensive new maintenance provisions for married and de facto partners. A de facto partner will be liable to maintain the other de facto partner to the extent that such maintenance is necessary to meet the other’s reasonable needs in circumstances where he or she cannot practicably meet his or her own needs.70 The New Zealand provisions allow for periodic or lump sum maintenance to be awarded,71 and sets limits on the duration of periodic maintenance.72 Under the new provisions, the liability to pay periodic maintenance ceases when the recipient partner marries or forms another de facto relationship.73
8.28 Section 65 sets out the matters that a court must consider when determining the amount of maintenance to be paid. These include the means of each party, the reasonable needs of each party, the financial and other responsibilities of each party, including any other order to pay maintenance and any other circumstance that makes one partner liable to maintain the other.74
THE PURPOSE OF PARTNER MAINTENANCE
8.29 In determining the type of maintenance provisions that should apply to domestic relationships under the PRA, it is helpful to examine some of the past and current purposes of partner maintenance.
8.30 Prior to the enactment of the FLA, like most other aspects of family law, maintenance was fault-based. That is, a person could claim maintenance only if she or he was the “innocent” party.75 Maintenance represented the continuing duty that a husband owed to a wife, as created by the marriage contract, and was a specifically female need. As a consequence, every wife was entitled to maintenance upon the dissolution of the marriage. In some cases, maintenance functioned as “punitive damages”, where the amount payable was increased or decreased in accordance with the degree of matrimonial fault. In others, it functioned as “lifestyle maintenance” that acted to preserve the standard of living to which the wife had become accustomed during the relationship. Underlying both these approaches is the view that marriage is (in addition to any religious or spiritual element) a life-long contractual arrangement.
8.31 With the enactment of no-fault divorce, the grounds for awarding maintenance changed. The focus moved away from considerations of the rights and obligations emerging out of the marriage contract, or created by the conduct of the parties. The right to maintenance was transformed into a duty to support that flowed from a consideration of the financial circumstances of the parties, during marriage and after divorce, in order to ameliorate the dependency of one party. The FLA created a general entitlement to maintenance76 based on the twin criteria of need on the one hand, and capacity to pay on the other.
8.32 The maintenance provisions of the FLA are closely intertwined with the provisions that deal with alteration of property interests.77 In fact, when the court is making an order under section 79, it is required to take into account the “maintenance” factors listed in section 75(2). That section provides that, in making an order for spousal maintenance, the court shall take into account the:
- age and state of health of the parties;
- income, property and financial resources of the parties and the mental and physical capacity of each of them for appropriate gainful employment;
- responsibility of either party to care for children or support any other person;
- extent to which maintenance would increase the earning capacity of the potential recipient;
- extent to which the potential recipient contributed to the income, earning capacity, property and financial resources of the other party;
- duration of the marriage and the extent to which it affected the earning capacity of the other party; and
- amount of any child support.78
Main purposes of partner maintenance
Dependency/need
8.33 The Commission in 1983 found that the primary function and purpose of maintenance was to provide a “means of easing the transition between the dependence which may exist during marriage and the responsibility for self-support assumed by each partner after the relationship breaks down”.79 The two limited forms of maintenance available under the PRA, rehabilitative and custodial maintenance, respond to the needs that flow from dependency created within the relationship.
8.34 The “need” rationale for the existence of partner maintenance has lost popularity in recent times, with the view that legislation should not encourage or reinforce such dependency. However, while the desire for formal equality between partners to a relationship is admirable, this is not necessarily borne out by statistics, particularly for women. For example, a disparity of real wages between men and women persists, notwithstanding the notion of equal pay,80 as does an unequal division of domestic labour and child care.81 These circumstances affect opportunities for paid employment, both during and after the relationship, and hence earning capacity and financial security.82 As a consequence, it has been argued that a desire for formal equality must be weighed carefully against the danger of overstating actual changes.83
Rehabilitative maintenance
8.35 Rehabilitative maintenance refers to the provision of transitional short-term support provided for the specific purpose of enabling the recipient to retrain or gradually re-enter the workforce. This is one of the grounds upon which maintenance can be ordered under the PRA, which states that a partner can claim maintenance on the grounds that “his or her earning capacity has been adversely affected by the circumstances of the relationship and, in the court’s opinion, maintenance would assist the applicant’s earning capacity by allowing the person to undertake training or study and it is reasonable to make the order”.84 The PRA provides for a three stage process. The claimant must show first, that the relationship had an adverse effect on his or her earning capacity; second, that a maintenance order would assist the applicant’s earning capacity; and third, that it is reasonable to make the order.85
8.36 Rehabilitative maintenance can be viewed in a broad or a narrow sense. A narrow interpretation requires the payment to address a specific condition created by the relationship within a specific period of time. A broader view could, for example, allow payments to “cushion the process of separation and of creating two households out of one” rather than address highly specific instances of disadvantage.86 Quentin has been in a de facto relationship with Brian for 8 years. She has had the primary care and control of 2 children, Alison 6 and Holly 4, and has worked part-time for the past 2 years as a child care worker which does not pay very well. After the relationship ends, Quentin applies for maintenance so that she can retrain as a computer data operator, which will improve her earning capacity. A narrow definition of rehabilitation would prevent any maintenance being awarded as Quentin already has an earning capacity and some skills. A broad interpretation of rehabilitative maintenance, on the other hand, could enable retraining in another field, to increase earning capacity.
8.37 Under the PRA, once a de facto partner is self-sufficient in an economic sense there is no entitlement to maintenance.87 The Supreme Court has interpreted “self-sufficiency” narrowly to mean off-setting the economic disadvantages incurred as a direct result of the relationship.88 However, there have been cases elsewhere where a form of rehabilitative maintenance has been provided for self-sufficient spouses who have nonetheless placed detrimental reliance on their partner, or whose partner has been unjustly enriched by decisions made during the relationship.89 This form of maintenance may be more akin to general compensatory maintenance, which is discussed later.90
Custodial maintenance
8.38 Custodial maintenance is the provision of support to the party with the primary care and control of a child or children of the relationship towards whom the parties have a joint responsibility. This is the only other circumstance in which maintenance may be awarded under the PRA.91 Despite the distinct purpose of such claims, some judges have refused custodial maintenance on the grounds that the payment of child support (under child support legislation) is sufficient. This indicates a fundamental misunderstanding of the function of custodial maintenance, which is effectively a payment to the custodial parent for child-minding services, equivalent to that paid for professional child-minding. In order to clarify the purpose of custodial maintenance and thus enable it to operate effectively, some delineation between child support and custodial maintenance is required.
Compensatory maintenance
8.39 Compensatory maintenance requires an evaluation of the parties’ needs, past contributions and capacity to pay in order to compensate one party’s dependency on the other when the relationship ends. This is the approach adopted under the FLA, where there is a general obligation on parties to support each other after separation.92
8.40 This approach to maintenance is especially useful where one partner has, for example, taken responsibility for domestic tasks while the other partner has obtained professional qualifications, or where there is little in the way of property assets but one partner has a significant financial resource, such as a high earning capacity or a superannuation expectancy. Despite the difficulties inherent in valuing non-financial contributions, it has been estimated that the value of unpaid work in Australia was about $261 billion in 1997, equivalent to approximately 48% of the country’s gross domestic product. Unpaid household work, such as cleaning, and childcare, comprised 91% of this work.93
Reduction of welfare expenditure
8.41 In the absence of maintenance, a person unable to support him or herself after separation is more likely to seek state support. In the 1983 Report, maintenance was not linked to concerns about public expenditure as it was accepted that the public purse would not be substantially affected by moving maintenance recipients away from (or towards) government assistance. Instead, the Commission made clear that maintenance should not prejudicially affect a person’s ability to receive social security.94 Since that time, there has been a notable shift in public policy away from state support. Private relationships and the division of assets within these relationships are now essentially matters to be dealt with individually and in the private sphere.
8.42 The Social Security Act 1991 (Cth) previously stated that a claim for maintenance was a pre-condition to receiving social security benefits. While this section no longer applies, the means-tested nature of social security and the increasing scrutiny of those receiving benefits mean that periodic maintenance could affect social security entitlements. Recent attempts to impose harsher eligibility requirements for social security benefits also need to be considered in any discussion of maintenance reform.95
Non-compensatory maintenance/wealth redistribution
8.43 In contrast to the rights and dependency models of maintenance, non-compensatory maintenance aims to achieve quite a different objective. The approach was first adopted in Canada, where the Supreme Court of Canada held that a spouse had an obligation “over and above what is required to compensate the spouse for loss incurred as a result of the marriage.”96 The case involved a claim for maintenance by a wife who had sustained incapacitating physical injuries during the marriage that prevented her from working although these injuries were not causally connected to the marriage.
8.44 In the judgment, maintenance was used to rectify (and compensate for) broader structural inequities that prevented the applicant from realising financial self-sufficiency and independence. The court took into account broader social conditions such as the division of labour and pay inequity that may hamper gender equality. Accordingly, the order functioned as a means of redistributing the wealth of the parties on separation. This approach has been criticised in Australia.97
Should there be a distinction between married and de facto partners for the purposes of maintenance?
8.45 Compensatory payments as a justification for partner maintenance was explicitly rejected by the Commission in its 1983 Report on the basis that de facto partners differed from married partners and the law should reflect this difference.98 The standard used to differentiate these relationships was the existence of explicit public commitment, and the concurrent creation of mutual obligation. As de facto relationships do not require such an explicit and public statement of commitment and obligation, it was argued that an expectation of mutual obligation could not be presumed.
8.46 One critique of that report notes that one of the problems confronting those involved in the process of law reform in this context is the “paucity of hard information about the nature of the problem”.99 Since that time, the majority of research and commentary concerning maintenance has continued to focus on developments to spousal maintenance and the experience of married partners, rather than de facto partners.100 However, while precise data is generally unavailable, some conclusions can be drawn.
8.47 First, de facto relationships are increasing in number and do not function in general as a prelude to marriage. In 1999, it was estimated that around 862,000 people were living in de facto marriages.101 By comparison, 584,100 people were living in de facto marriages in 1991.102 While the number of actual marriages has not decreased over the past 3 years, the number of people classed as currently never married has increased from 25.4% in 1976 to 30.6% in 1995.103 The Australian Bureau of Statistics estimates that 28% of men and 23% of women will never marry in their lifetime.104 De facto relationships, on the other hand, are likely to increase in number and duration and, in many respects, may be indistinguishable from marriage.
8.48 Secondly, the statistics indicate that, in many cases, the experience of those in de facto relationships does not differ from those who are married. Characteristics of marriage, such as long-term commitment, co-habitation and mutual support, may also be elements of a de facto relationship. This is not to challenge the status and religious significance of marriage, but to emphasise the need to consider the ways in which the experiences of people upon the breakdown of a relationship (married or not) may be similar. For example, in the case of a long-term de facto relationship between partners involving children, the custodial parent is very likely to encounter issues similar to those of a married woman or man in the same circumstances.
8.49 In other jurisdictions, recent debate advocates a non-discriminatory approach that provides both legal recognition of de facto relationships and mechanisms to provide redress.105
OPTIONS FOR REFORM
8.50 The Commission has identified four potential options for reforming the partner maintenance provisions in the PRA.
Option 1: Retain the status quo
8.51 Under this option, the current provisions in section 26 and section 27 of the PRA would remain. One disadvantage of this approach is that the grounds on which maintenance may currently be claimed, combined with restrictive judicial interpretation of the provisions, are extremely limited. This results in people seeking maintenance orders under the PRA being disadvantaged in terms of the grounds upon which those orders may be sought in comparison with their married counterparts obtaining orders under the FLA where the grounds are broader. The existing provisions also perpetuate the distinction between orders for maintenance under section 27 and property orders made under section 20 of the PRA.106 Experience under the FLA has shown that the line between property and asset division and maintenance can be unclear, and as such, these matters are best considered at the same time.107
Option 2: Broaden the current provisions
8.52 The second option for reform is to retain the general presumption in the PRA against maintenance, but to make the grounds on which maintenance may be awarded more flexible. For example, the PRA could reflect a broader interpretation of rehabilitative maintenance, or clarify the distinction between custodial maintenance and child support.108 This approach would have the advantage of providing greater scope for an award of maintenance where it is just and equitable in the circumstances. One disadvantages is that maintenance would continue to be considered separately from property orders. Further, the general presumption in the PRA against an award of maintenance would probably make it unlikely that the actual number of maintenance orders would increase.
Option 3: FLA approach
8.53 Another option is to amend the PRA to reflect the same grounds for partner maintenance as provided for in section 75(2) of the FLA. This would have the advantage of providing broader grounds for awards of maintenance than are currently available under the PRA, and enabling maintenance and property orders to be determined at the same time, as is the case under the FLA. Family Court jurisprudence would also be of direct relevance in interpreting the provisions of the PRA, which would promote consistency between the two regimes. From a symbolic perspective, mirroring the provisions of the FLA would give those in domestic relationships the same rights and responsibilities, so far as maintenance is concerned, as married people.
8.54 The major disadvantage of this approach is that, according to research, partner maintenance is rarely awarded under the FLA.109 Accordingly, the FLA provisions may not address the low incidence of awards under the PRA.
Option 4: Integrative approach
8.55 The final proposal put forward by the Commission involves removing separate maintenance provisions altogether. Instead, the court looks at the factors that would ordinarily give rise to a claim for partner maintenance as matters to be considered at the time of property division. This is known as the integrative approach, and is used in Queensland and Victoria.
8.56 The benefit of this approach is its flexibility. It recognises that partner maintenance has changed over time, and rather than being a form of on-going dependency is now inextricably linked with property or monetary settlements. It is also more convenient dealing with maintenance and property in the one order.
The drawback of this approach is that it is of little assistance to those with high incomes or earning capacity but few property assets.
FOOTNOTES
1. This chapter focuses only on “partner” maintenance. Maintenance for children is discussed briefly in Chapter 3.
2. See para 1.11-1.12, 1.23 and 2.7-2.9 for a discussion of the effect of the 1999 amendments.
3. PRA s 5(1).
4. PRA s 26. See para 8.4-8.8.
5. NSW Law Reform Commission, De Facto Relationships (Report 36, 1983) Ch 8, especially at 8.25-8.26. The Commission held the view in 1983 that de facto relationships should not be viewed on an equal footing with marriage: see para 1.14-1.15.
6. FLA s 72.
7. PRA s 17(1). There are some circumstances in which the court is permitted to consider an application for financial adjustment where the relationship has lasted less than 2 years, for example, where there is a child involved and/or failure to make an order for financial adjustment would cause serious injustice to the applicant): see s 17(2).
8. PRA s 18(1). A claim for maintenance does not survive the death of a party to the application: s 31.
9. See also Domestic Relationships Act 1994 (ACT) s 19, and De Facto Relationships Act 1991 (NT) s 26(1) for similar provisions.
10. PRA s 27(1)(a).
11. PRA s 27(1)(b).
12. PRA s 30(3).
13. Todoric v Todoric (1990) DFC 95-096 at 76,241 (Powell J).
14. O Jessep, “Financial Adjustment in Domestic Relationships in NSW: Some Problems of Interpretation”, paper prepared for NSW Law Reform Commission seminar (Sydney, 7 July 2000) at 6 (“Jessep seminar paper”); L Willmott, De Facto Relationships Law (LBC, 1996) at 197.
15. PRA s 27(2). The relevant factors include the income, property and financial resources of each de facto partner, including any pension allowance or benefit or capacity for gainful employment; the financial needs and obligations of each partner; the responsibilities of either partner to support any other person, and the terms of the property division and any child maintenance payments.
16. D v McA (1986) 11 Fam LR 214 (Powell J); Todoric v Todoric (1990) DFC 95-096 (Powell J).
17. Including estimates of the income and welfare benefits, and in some cases the “ample margin” remaining from child maintenance: See D v McA (1986) 11 Fam LR 214 (Powell J). Note, however, that this decision predates the child support scheme and the consequent amendments to the Social Security Act 1991 (Cth).
18. Todoric v Todoric (1990) DFC 95-096 at 76,234 (Powell J).
19. Todoric v Todoric (1990) DFC 95-096 at 76,241-76,242 (Powell J); Parker v Parker (1993) DFC 95-139 at 76,139 (Young J).
20. Todoric v Todoric (1990) DFC 95-096 at 76,241-76,242 (Powell J). Rehabilitative maintenance is available for up to 3 years after a court order is made, or 4 years after the end of the relationship, whichever is shorter: see PRA s 30(2).
21. There is considerable empirical research showing that spousal maintenance is rarely claimed or received: see K Funder, M Harrison and R Weston, Settling Down: Pathways of Parents after Divorce (AIFS, Melbourne, 1993); P McDonald (ed), Settling Up: Property and Income Distribution on Divorce in Australia (AIFS and Prentice Hall, Sydney, 1986); and J Behrens and B Smyth, Spousal Support in Australia: A study of incidence and attitudes (AIFS, Working Paper 16, 1999).
22. PRA s 30(1); Domestic Relationships Act 1994 (ACT) s 22. Compare this with the De Facto Relationships Act 1991 (NT) s 32(1) which allows periodic maintenance until the child turns 18 years of age.
23. PRA s 30(2). For equivalent provisions see: Domestic Relationships Act 1994 (ACT) s 22; De Facto Relationships Act 1991 (NT) s 32(2).
24. See, for example, De Facto Relationship Act 1999 (Tas) s 23; FLA Pt 8.
25. PRA s 29. See also, De Facto Relationship Act 1999 (Tas) s 25; and De Facto Relationships Act 1991 (NT) s 28 and FLA s 82(4). Note also that one of the factors a court must take into account when considering an application for maintenance under the FLA is the financial circumstances of any person with whom one of the parties is cohabiting: s 75(2)(m).
26. Jessep seminar paper at 6.
27. PRA s 5(1)(b).
28. Jessep seminar paper at 6.
29. See para 8.22-8.25.
30. Domestic Relationships Act 1994 (ACT) s 19(2).
31. Domestic Relationships Act 1994 (ACT) s 23(2). Compare this with the PRA s 35.
32. PRA s 19(1). The FLA has an equivalent provision: s 81.
33. Keene v Harkness (1997) DFC 95-179.
34. Keene v Harkness (1997) DFC 95-179 at 77,555 (Cohen AJA).
35. Keene v Harkness (1997) DFC 95-179 at 77,557 (Cohen AJA).
36. See, for example, In the Marriage of Walters (1986) FLC 91-733; In the Marriage of Best (1993) 116 FLR 343; In the Marriage of Clauson (1995) 18 Fam LR 693; DJM v JLM (1998) FLC 92-816.
37. In the Marriage of Clauson (1995) 18 Fam LR 693 at 706. For a discussion of the Family Court’s approach to this issue, see A Sifris, “Lump Sum Spousal Maintenance: Crossing the Rubicon” (2000) 14 Australian Journal of Family Law 1.
38. In Keene v Harkness (1997) DFC 95-179, the court noted that the respondent had extensive demands on his income (including child support responsibilities for five children) and instead awarded the applicant a small lump sum payment which it noted could come from the proceeds of the sale of the house: at 77-557.
39. Foster v Evans (1997) DFC 95-193 at 77,685 (Bryson J).
40. PRA s 28.
41. M Neave, “Private Ordering in Family Law – Will Women Benefit?” in M Thornton (ed), Public and Private; Feminist Legal Debates (Oxford University Press, Melbourne, 1995).
42. 13 Halsbury’s Laws of Australia [205-6442].
43. PRA s 35.
44. PRA s 41.
45. D v McA (1986) 11 Fam LR 214 (Powell J): claim for $200 per week reduced to $130 per week; Todoric v Todoric (1990) DFC 95-096 (Powell J): claim for maintenance denied on basis that the partner could not afford the amount and the plaintiff could not show that there was a causal relationship between the care and control of the children and an inability to support herself adequately, especially given the potential provision of Workers Compensation; Parker v Parker (1993) DFC 95-139 (Young J): claim for maintenance disallowed (but a capital amount awarded under s 20 that appears to have been calculated by reference to maintenance criteria); Foster v Evans (1997) DFC 95-193 (Bryson J): lump sum maintenance award of $7000 lump sum; Keene v Harkness (1997) DFC 95-179 (NSWCA): lump sum maintenance of $20,500 awarded. This included retrospective periodic payments (of differing amounts) until the youngest child was 12 years of age.
46. J Behrens and B Smyth, Spousal Support in Australia: a study of incidence and attitudes (AIFS, Working Paper 16, 1999) at 7.
47. Behrens and Smyth at 8.
48. J Wade, “Forever Bargaining in the Shadow of the Law: Who sells solid shadows? (Who advises what, how and when)” (1998) 12 Australian Journal of Family Law 21 at 36. Consideration of how discretionary legislative provisions create uncertainty as to their application, particularly in a family law context.
49. See Behrens and Smyth at 21.
50. PRA Pt 4 s 44(1).
51. PRA s 44(1).
52. PRA s 47(1); see also para 4.45. Note that parties cannot, by agreement, contract out of child support or child maintenance obligations: PRA s 45(2); see also para 4.62.
53. PRA s 47(1)(a)-(d).
54. PRA s 46.
55. See para 4.40-4.44 for definitions.
56. See para 4.63-4.118 for further discussion of the current and proposed grounds for setting aside financial agreements.
57. See Domestic Relationships Act 1994 (ACT) s 18; De Facto Relationships Act 1991 (NT) s 24; De Facto Relationships Act 1999 (Tas) s 22.
58. There is no record of any claims being made under the ACT legislation for same-sex partner.
59. Domestic Relationships Act 1994 (ACT) s 19. A domestic relationship in the ACT is defined as a personal relationship (other than a legal marriage) between two adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other: s 3. Cohabitation is not a necessary criterion for the existence of a domestic relationship.
60. Family Court Amendment Bill 2001 (WA) s 205ZE, s 205ZF.
61. South Australia, Victoria and Queensland do not provide for maintenance, though they have provisions dealing with property division.
62. De Facto Relationship Act 1999 (Tas) s 23(1)(b).
63. In determining whether to make the order, or in fixing the amount to be paid, the court must have regard to nine enumerated matters that closely resemble s 75(2) matters contained in the FLA.
64. FLA s 75(2)(o), which states that the court may consider “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.”
65. The Property Law Amendment Act 1999 (Qld) Div 4 s 279-s 285. Section 282 of the Act states that the purpose is to “ensure a just and equitable property distribution at the end of a de facto relationship.” Some of the functions of maintenance might be seen as being served through these property adjustment provisions. South Australia also provides a property regime for de facto couples, not including maintenance or same sex couples: De Facto Relationships Act 1996 (SA).
66. NSWLRC Report 36 at para 8.16-8.19.
67. M v H [1999] 2 SCR 3.
68. Amendments Because of the Supreme Court of Canada Decision in M v H 1999 (Ontario), SO 1999, c 6.
69. By the Family Proceedings Amendment Act 2001 (NZ), which came into force on 1 February 2002.
70. In determining liability for maintenance, the court is to look at the ability of the de facto partners to become self-supporting; the responsibilities of each partner for the ongoing care of any dependent children of the relationship after the relationship has ended; the standard of living of the partners during the relationship; and the reasonable education needs of the partner seeking maintenance: Family Proceedings Act 1980 (NZ) s 64(1) and s 64(2).
71. Family Proceedings Act 1980 (NZ) s 70.
72. The Act states that each partner should assume responsibility for their own needs within a reasonable time after the relationship ends, following which time neither partner is liable to maintain the other: Family Proceedings Act 1980 (NZ) s 64A(1). However, a de facto partner will still be liable to maintain the other if, given the duration of the relationship, the relative ages of the parties and the ability of the partner seeking maintenance to support him or herself, it is unreasonable for one party to do without maintenance and it is reasonable to require the other party to provide that maintenance: Family Proceedings Act 1980 (NZ) s 64A(2) and s 64A(3).
73. Family Proceedings Act 1980 (NZ) s 70A.
74. Family Proceedings Act 1980 (NZ) s 65(2).
75. For a history of spousal maintenance in Australia see H Finlay and R Bailey-Harris, Family Law in Australia (4th ed, Butterworths, Sydney, 1989) at para 704-711.
76. Unlike the PRA: see para 8.3-8.7.
77. See Chapter 5 for a discussion of property.
78. See PRA s 75(2).
79. NSWLRC Report 36 at para 8.11.
80. On average, women earn 10% less than men for equal tasks and are paid 10% less per hourly rate of pay: Australian Bureau of Statistics, Australian Social Trends (Cat No 4102.0, 2000) at 150. The AIFS, Divorce Transitions Project (2000) found that there was a gendered disparity in post-divorce household incomes, with older and younger women experiencing the lowest incomes and the most disadvantage: R Weston and B Smyth, “Financial Living Standards After Divorce” (2000) 55 Family Matters 10 at 13. See also K Funder, M Harrison and R Weston, Settling Down: Pathways of Parents after Divorce (AIFS, Melbourne, 1993).
81. Women have primary responsibility for the unpaid labour of caring for home or family during marriage, often in addition to their paid work commitments. Men have primary responsibility for the paid labour of financial support. Women continue to be primarily responsible for unpaid homemaker and childcare responsibilities, or are encouraged to make this their first priority: See ABS, Time Use Survey (Cat No 4153.0, 1997) for statistics on the unequal division of domestic work.
82. For example, 31.8% of all women are employed casually and 43.5% are employed part-time. By contrast, 22% of all men are employed casually, and 12.5% are employed part-time: ABS, Australian Social Trends (Cat No 4102.0, 2000) at 108.
83. See A Diduck and H Orton, “Equality and Support for Spouses” (1994) 57 Modern Law Review 681 at 683 for the dangers of a formal equality approach. See also K O’Donovan, “Should all Maintenance of Spouses be Abolished” (1982) 45 Modern Law Review 424 at 424-428.
84. Section 27(1)(b).
85. Todoric v Todoric (1990) DFC 95-096 at 76,241 (Powell J).
86 Family Law Council, Spousal Maintenance (Discussion Paper, AGPS, Canberra, 1989) at para 6.3.
87. Todoric v Todoric (1990) DFC 95-096; Parker v Parker (1993) DFC 95-139.
88. Todoric v Todoric (1990) DFC 95-096 at 76,240-1 (Powell J); Parker v Parker (1993) DFC 95-139 at 76,139 (Young J).
89. See In the Marriage of Best (1993) 116 FLR 343 (Fogarty, Lindenmayer and McGovern JJ) and In the Marriage of Mitchell (1995) 120 FLR 292 (Nicholson CJ, Fogarty and Jordan JJ). For a Canadian decision with similar emphasis, see Moge v Moge [1992] 3 SCR 813 (Supreme Court of Canada).
90. See para 8.39-8.40.
91. Section 27(1)(a). See para 8.5.
92. FLA s 72.
93. ABS, Unpaid Work $261 Billion – ABS Finding (Cat No 5240.0, Media Release, 10 October 2000); ABS, Unpaid Work and the Australian Economy (Occasional Paper, Cat No 5240.0, 1997).
94. Report 36 at para 8.37-8.39. This is also reflected in the FLA: see s 75.
95. See Reference Group on Welfare Reform, Participation Support for a More Equitable Society (Final Report, 2000).
96. Bracklow v Bracklow [1999] 1 SCR 420 (Supreme Court of Canada) at 430-431 (McLachlin J).
97. See K Abery, “Bracklow v Bracklow: a Canadian expansion of the bases for entitlement to spousal maintenance” (1999) 13 Australian Journal of Family Law 271; M Neave, “From Those Who Have Nothing, Even What They Have Will Be Taken Away – Is There Still a Case for Spousal Maintenance” (2000) 9th National Family Law Conference – Conference Handbook 301-315.
98. NSWLRC Report 36 at para 8.9.
99. H Astor and J Nothdurft, “Report of the New South Wales Law Reform Commission on De Facto Relationships” (1985) 48 Modern Law Review 61 at 63.
100. This focus on married persons is evident in an Australian and international context. For example, Australian research suggests that even in the event of a favourable property settlement women (both older and younger, in particular those who take on the primary domestic role during the relationship, and especially women with children) are worse off after divorce. P McDonald (ed), Settling Up: Property and Income Distribution on Divorce in Australia (AIFS and Prentice Hall, Sydney, 1986) for a discussion on maintenance in the context of married persons and K Funder, M Harrison and R Weston, Settling Down: Pathways of Parents after Divorce (AIFS, Melbourne, 1993). Note also US, and UK, studies which show that men who do not repartner are better off some time after divorce, whereas women who do not repartner are worse off: L Weitzman, The Divorce Revolution (Free Press, New York, 1987). For the methodological problems of these studies see A Sorenson, “Estimating the Economic Consequences of Separation and Divorce: A Cautionary Tale for the United States” in L Weitzman and M MacLean (eds) Economic Consequences of Divorce: the International Perspective (Clarendon Press, Oxford, 1992) at 263.
101. ABS, Marriages – Couples choose civil celebrants (Cat No 3310.0, Media Release, 21 September 2000); ABS, Marriages and Divorces (Cat No 3310.0, 1999).
102. ABS, Marriages and Divorces (Cat No 3310.0, 1997) at 86.
103. Australian Institute of Family Studies, Australian Family Profiles: Social and Demographic Patterns (1997) Table 2.1 at 13.
104. ABS, Marriages – Couple choose civil celebrants (Cat No 3310.0, Media Release, 21 September 2000).
105. See, for example, the discussion on the Statute Law Amendment (Relationships) Act 2001 (Vic): Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 23 November 2000, the Hon R Hulls MP, Second Reading Speech at 1911-1913.
106. See Chapters 5 and 6 for a discussion of property issues.
107. See Chapter 5 for an explanation of the overlap between property division and maintenance awards.
108. See para 8.35-8.40.
109. See para 8.8.
