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Case Study

Spousal Maintenance

Blevins & Blevins [2019] FCCA 1923 (11 July 2019)

The case of Blevins demonstrates the possibility of bringing an action for spousal maintenance after 20 years of being divorced. This was even in the case where the Court had made a final determination for lump sum maintenance of which intended to “finally determine” the obligations for spousal maintenance. A spousal maintenance order was made in favour of the wife in 1999, whereby the husband would pay the wife periodic spousal maintenance of $750 per calendar month until 2008. A further Order was sought by the wife in 2009. She claimed that as she was unable to support herself without assistance of an income. As a result, Ms Belvin was granted $275,000 spousal maintenance from her ex-husband Mr Belvin. It was expected that this sum would conclude any financial pursuits from the wife and settle the matter indefinitely.

The wife stopped receiving a disability pension from Centrelink in 2017. It was shortly after that, in 2019 that she filed a further Initiating Application seeking $400 per week. The wife argued that she was permitted under section 44(3) of the Family Law Act 1975 to bring a new application and did not require to seek leave from the Court. The Husband responded seeking dismissal of the application on the following grounds:

  1. He had discharged his obligations under the Family Law Act for spousal maintenance in 2009.
  2. Section 44(3) of the Family Law Act operated to prevent an application after 12 months. The husband argued that if she was to be granted additional spousal maintenance, he would suffer financial hardship.
  3. The husband also submitted that the wife was prevented from making another claim under section 81 of the Family Law Act.

Factors the Court considered

The Court considered whether the Applicant required leave pursuant to section 44(3). In reaching this decision, the Court had regard to the case of Atkins & Hunt [2016] FamCAFC 230, which said:

  1. The liability for spousal maintenance can persist despite the formal end of the marriage or other financial orders having been made;
  2. The nature of orders for settlement of property and their ‘finality’ should be contrasted with orders for spousal maintenance which the legislation contemplates might be later modified;
  3. The expression “an order previously made” in section 44(3) is not restricted in its operation;
  4. The expression “revival” is not confined in section 44(3) as it is in section 83, to the situation where an Order has been suspended;
  5. The expression “revival” means it can become operative or valid again.

This means, the Court decided that section 44 can be interpreted as having in contemplation ‘an order previously made’ becoming operative or valid again.

The Order from 2009 is ‘an order previously made’ for the payment of spousal maintenance. The 12-month limitation period does not apply to ‘an order previously made’ in proceedings with respect to maintenance. This is because section 44(3) contemplates ‘an order previously made’ becoming operative again. Therefore, the Applicant is not required to seek leave pursuant to section 44(3).

The effect of this judgement

This means, the Applicant can apply for spousal maintenance for a third time and after 21 years of their divorce. It will be up to the Court to determine whether the Respondent will be required to pay. Without obtaining proper legal advice about finalising all aspects of your matrimonial breakdown, loopholes like this can continue to affect you. At Aston Legal Group, our lawyers can assist you to resolve your spousal maintenance matter.

The Next Step

If you would like to discuss seeking spousal maintenance or have had an application for spousal maintenance made against you, contact us on 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next.

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