Interim Spousal Maintenance and Urgent Spousal Maintenance
The court possesses the authority, as outlined in section 74(1) of the Family Law Act 1975 ("the Act"), to issue interim maintenance orders and, under section 77, to issue urgent maintenance orders.
In contrast to the prerequisites for interim spousal maintenance outlined in the Act, an application for urgent spousal maintenance undergoes a less detailed assessment than a regular maintenance application. The application for urgent maintenance is not obligated to meet the threshold requirements of section 72(1) or address considerations in section 75(2) of the Act, although these considerations are not entirely irrelevant.
In the case of Hall v Hall [2016] HCA 23, the Court clarified that the power to make an interim order under section 74(1) is distinct from the power to make an urgent order, which is separately granted by section 77 of the Act.
Breaking down section 77, the High Court determined that, in applications for urgent spousal maintenance, the Court must be convinced on three fronts:
- Firstly, it must be evident to the Court that "a party to the marriage is in immediate need of financial assistance";
- Secondly, it must be "impractical in the circumstances to determine immediately what order, if any, should be made"; and
- Lastly, if these criteria are met, the Court must decide on a "periodic sum or other sums as the court considers reasonable."
(Refer also to Malcolm v Malcolm (1977) FLC 90-220 and Chapman v Chapman [1979] FamCA 14)
Urgent maintenance orders are commonly known as "stop-gap" orders and are issued to address an immediate need of the spouse until a hearing can be scheduled for spousal maintenance. (Refer also to Page v Page (1987) FLC 91-806, Ashton v Ashton (1982) FLC 91-285, and Sadlier v Sadlier [2015] FamCAFC 130)
Interim maintenance applications are evaluated based on the threshold test outlined in section 72 and the factors in sections 74 and 75(2). In Kajewski v Kajewski (1978) FLC 90-471, Lindenmayer J established that, in applications for interim maintenance, the Court must:
- Initially, inquire whether the party seeking maintenance is unable to adequately support themselves due to caring for a child of the marriage, age, physical or mental incapacity for gainful employment, or other reasons;
- Secondly, assess the means and reasonable needs of the other party, and their ability to contribute to the support of the applicant;
- Finally, examine the reasonableness of the other party paying maintenance.
Orders for urgent spousal maintenance typically have a defined or relatively short duration. In contrast, orders for interim spousal maintenance are determined by the Court for a duration it deems appropriate.
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