When navigating divorce proceedings, understanding spousal maintenance is essential.
Among the key terms in this area are urgent spousal maintenance and interim spousal maintenance. Though often confused, these concepts cater to different needs and carry distinct legal implications. The family law case of Ashton [1982] FamCA 9 (Ashton, T.M. and Ashton P.L. [1982] FamCA 9; (1982) FLC 91-285; (1982) 8 FamLR 675 (5 March 1982) serves as an example of how courts differentiate and apply these terms in practical situations.
Understanding Urgent Spousal Maintenance
Urgent spousal maintenance is granted when there is an immediate need for financial support.
Crucially, it can be sought before all the evidence is at hand or based on such evidence as the parties can adduce at short notice.
Applications for urgent spousal maintenance are made under section 77 of the Family Law Act 1975, which states:
Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.
The court can make orders for urgent spousal maintenance ex parte (in the absence of all parties) prior to the first return hearing for the matter.
In the case of Ashton, the wife had originally sought urgent spousal maintenance under section 77 but had recently received a partial property settlement of $105,000, which undermined her urgent maintenance application. In all likelihood, her urgent maintenance application would be dismissed on the basis that the payment of $105,000 already addressed any pressing financial need.
To attempt to remedy this situation, the wife had filed a new application for interim spousal maintenance, seeking substantially the same relief as sought in her application for urgent spousal maintenance. As you will soon find out, this did not go to plan.
The Nature of Interim Spousal Maintenance
Interim spousal maintenance involves temporary financial support while a property settlement is being finalised.
In the Ashton case, the Judge defined interim spousal maintenance as:
...a creature whose exact nature has not been adequately defined but, as I understand it, differs only from an application for permanent maintenance in that the order which is sought is an order until further order.
Unlike urgent spousal maintenance, both parties need to be afforded the opportunity to present their evidence by filing affidavits and financial statements before the court can make a decision as to whether to make an interim spousal maintenance order.
In the Ashton case, the wife sought to "re-label" her urgent maintenance application as an interim maintenance application, in circumstances where her original application was doomed to fail.
It is important to take away that interim spousal maintenance is distinct from urgent spousal maintenance.
In the wife's case, she was not granted maintenance on an urgent basis; instead, the matter was remitted to a further hearing with directions for filing material, as is standard for interim spousal maintenance applications.
Legal Implications of Each Type of Maintenance
The legal consequences of urgent versus interim spousal maintenance can be significant. To obtain urgent maintenance, the applicant must convincingly demonstrate the immediate need for support. Courts can render decisions rapidly, often within a few days after an application is filed.
In contrast, securing interim spousal maintenance demands a broader evaluation and is primarily appropriate when a final property settlement cannot be completed for some time and it will be reviewed usually when making final orders for property settlement.
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