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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

The Family Court of Australia and the Federal Circuit Court of Australia both exercise family law jurisdiction and can hear and determine proceedings for spousal maintenance. This applies to individuals who are or were married, or were in a de facto relationship (this includes same sex couples).

Under the Commonwealth Family Law Act 1975, you have a responsibility following separation to financially assist your spouse, former spouse or former de facto partner if that person cannot adequately support themselves from their personal income, assets and/or financial resources.

Spousal maintenance refers to a sum of money paid periodically or as a lump sum by one person to the other in that situation. Periodic maintenance is ordered where an individual has a need for ongoing financial support, and is usually paid weekly or monthly. This differs to lump sum spousal maintenance orders, which can be made for medical, dental, insurance and other expenses as they arise, or in circumstances where making a periodic order may not be appropriate.

Orders for periodic maintenance are usually for a limited duration, and generally until the payee obtains employment, earning sufficient income to meet their financial needs, commences a de facto relationship, remarries, or is otherwise able to meet their needs from another source, including a property settlement.

When can I make an application for spousal maintenance?

If you were married, applications for spousal maintenance must be made within 12 months of your divorce becoming final. If you were in a de facto relationship you must make an application for maintenance within 2 years of the breakdown of your relationship. If you miss the relevant deadline, an application to the Court seeking permission to apply out of time is required as a preliminary step, however this is not always granted.

In practice, applications for spousal maintenance are typically made in the period between separation and finalisation of a property settlement, when a former partner may have access to limited income and/or funds that are insufficient to meet their reasonable expenses.

Where one individual is without any financial support and in a desperate situation (usually where support has been suspended or terminated unilaterally by their former partner without or at short notice) it is possible to seek urgent spousal maintenance.

In that situation, the usual evidentiary requirements are overlooked in the first instance by the Court. The Court will consider the evidence provided and, if the Court is satisfied that the limited evidence indicates that they are entitled to spousal support and that urgency exists, will order maintenance be paid immediately for a fixed period, usually a few weeks. The Court will then require both former partners to return to Court, to allow for the matter to be considered more carefully.

Orders for indefinite, periodic payments of spousal maintenance, following an adjustment of each individual’s property, are rare as property settlements usually include adjustments for any maintenance component. These adjustments are intended to finally determine (as far as practicable) the financial relationship between former partners.

Notwithstanding this, an order for spousal maintenance, even if it is specific and for a fixed period of time, is capable of being revived many years later in the right circumstances. There are options available to parties to reduce the risk of future claims including by paying a lump sum amount, or entering into a Financial Agreement in some situations.

How do I prove my claim or resist a claim?

To be successful, you must demonstrate that you are unable to support yourself adequately and have a reasonable “financial need”. The second part of the test requires you to establish that the other person can reasonably meet that need because they have the “capacity to pay”. If either of those two factors cannot be proven, an order for spousal maintenance will not be made by the Court.

For example, if you are unemployed but have substantial funds at your disposal, you cannot prove a financial need and an application for spousal maintenance in that situation would fail.

In most cases, a need for financial support must be raised with the other person. An exchange of relevant documents should be proposed, to allow each person to consider their position, and also to provide a genuine attempt to resolve the dispute. Unsurprisingly, a request for payment is often resisted and if so, usually results in the commencement of Court proceedings by the partner claiming financial difficulty.

In that situation, each person must complete and file with the Court a document known as a Financial Statement. This document sets out the evidence in support of their position including:

  • their income from all sources,
  • itemized expenditure,
  • their assets, and
  • financial resources and liabilities.

Save for urgent cases, documentation corroborating that information must be exchanged.

There is always an opportunity to resolve the matter by agreement during the Court process prior to the hearing. In cases where this is not possible, the Court will hear the evidence and make a decision.

How will the Court decide whether to order spousal maintenance and if so, how is it calculated?

In these circumstances, both individuals are required to make genuine attempts to secure paid employment so as to be able to support themselves. If either party isn’t working, the Court will scrutinize the reason(s) why this is the case.

If you are working but your income is insufficient to meet your living expenses, you may still be entitled to spousal maintenance.

In making its decision, the Court must refer to a comprehensive checklist of relevant factors either under Section 75(2) for claims between married parties or formerly married parties and Section 90SF if the claim is between former de facto partners.

Factors that are typically relevant are:

  1. your age and state of health and that of and that of your former partner,
  2. each person’s ability to work,
  3. whether the marriage or de facto relationship has affected either person’s ability to earn an income,
  4. with whom any children live, and
  5. whether each person enjoys a suitable standard of living.

There is ultimately no mathematical formula applied by the Court in reaching its decision, as each case is unique and will be considered on its individual merits. The Court will scrutinize the parties’ expenditure and make such orders it considers appropriate. The Court will have regard to a standard of living for each person that is reasonable in the circumstances, not the standard that they were accustomed to during their relationship.

How can Sharrock Pitman Legal assist?

If you have any further queries in regards to spousal maintenance or require assistance making an application, we are happy to help. Please feel free to contact our Accredited Specialist Family Law team on 1300 205 506 or by email at family@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Ath Balaskas

For further information contact

Ath Balaskas

Ath is a Senior Associate of Sharrock Pitman Legal.

She is an Accredited Specialist in Family Law (accredited by the Law Institute of Victoria). For further information, contact Ath on her direct line (03) 8561 3319.

More on

Family Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.