By Antony Kahn, Consultant

The applicant de facto wife successfully appealed the decision of the primary judge to uphold the decision of the senior registrar to refuse her application for maintenance. The appeal court, constituted by Aldrige J, held that the primary judge had erred in finding that the de facto wife could adequately support herself in circumstances where she had reduced her expenses to make ends meet in the absence of provision of financial support by the de facto husband.

Legal framework

Spousal maintenance is a payment by one party to a marriage or de facto relationship to the other party for their financial support. The payment of maintenance can be periodic or paid as a lump sum. It is a separate payment to property settlement or child support.

In determining an application for maintenance, the Court will consider whether:

  • the applicant can adequately support themselves; and
  • the respondent has the capacity to support the applicant.

In assessing whether the applicant can adequately support themselves, the Court will have regard to whether the applicant:

  • has the care and control of a child or children under the age of 18 years;
  • is unable to obtain appropriate gainful employment by reason of age or physical or mental incapacity; or
  • has any other demonstrated need having regard to the matters set out in section 75(2) (for married couples) or section 90SF(3) (for de facto couples) of the Family Law Act 1975.

In order to succeed on a maintenance application, the applicant must establish a need for maintenance as well as a capacity on the part of the respondent to pay maintenance. The applicant’s need is represented by the shortfall between the applicant’s income and reasonable expenses.


This was a brief de facto relationship, where the parties had lived together for less than two years. However, there was a young child of the parties’ relationship, who lived with the de facto wife and spent time with the de facto husband.

Primary judge’s decision

There was no issue in this case that the de facto husband earned a significant income and was capable of paying maintenance to the de facto wife. The case turned on whether, and if so to what extent, the de facto wife required maintenance.

The primary judge accepted that, based on the de facto wife’s Financial Statement, there was a weekly shortfall of $586 between her income and her expenses. There was no finding that any of the expenses deposed to by the de facto wife were unreasonable.  In fact, the de facto husband deposed to having expenses more than three times those of the de facto wife in his Financial Statement.

However, the primary judge was not satisfied as to the de facto wife’s ‘need’ for maintenance in circumstances where she appeared to have been able to support herself adequately following the separation in the absence of provision of financial support by the de facto husband.  The primary judge dismissed the wife’s application.

Appeal judgment

On appeal, Aldridge J found that, having accepted that the de facto wife’s expenses exceeded her income (and where the de facto husband’s capacity to pay maintenance was not an issue), the primary judge had erred in failing to award maintenance to the de facto wife.

The threshold question is whether the party seeking maintenance is able to adequately support themselves. At [27], Aldrige J suggested that “Whilst adequate needs can often be inferred from a person’s expenses, such expenses may not extend to reasonable needs. A person with no income and who cannot pay any expenses, still has needs.”

While there is no presumption that the standard of living enjoyed by a party during a relationship should be maintained following separation, it is nonetheless a relevant factor, and a party’s “reasonable needs” are to be assessed having regard to their previous standard of living.  The primary judge failed to undertake any such consideration.

The primary judge correctly quoted the principle that “the idea that “adequate” means a subsistence level has been firmed rejected”, but failed to apply this principle when determining the de facto wife’s application for maintenance.

In passing, Aldridge J was critical of the voluminous material put before the primary judge, which included extensive affidavits made by each party and 648 pages of invoices and receipts submitted by the de facto wife in response to the de facto husband calling upon her to substantiate her personal expenses and other living costs.

At [6], Aldridge J acknowledged that in hearing an interim spousal maintenance application, it is not practical or realistic for the Court to conduct an audit of the parties’ expenses or to require extensive proof of each and every expense.  While the applicant must still prove his or her case, long standing and widely accepted authority states that the Court conducts “not perhaps as final or exhaustive a hearing as would be the case if one were hearing the matter finally” (Williamson and Williamson (1978) FLC 90-505 at 77,650), which was quoted with approval by the Full Court in Redman and Redman (1987) FLC 91-805 at 76,081 with the Full Court adding, “The evidence need not be so extensive and the findings not so precise”.

Practical insights

This case reminds us that for the purpose of a maintenance application, the applicant’s reasonable needs are not limited to subsistence level and regard will be had to the standard of living enjoyed by the applicant during the marriage or de facto relationship.

If you require assistance with respect to financial matters arising out of the breakdown of a marriage or de facto relationship, including making or opposing an application for maintenance, please do not hesitate to contact one of our experienced family lawyers.

Qin & Donato [2023]FedCFamC1A 223