Applications for maintenance are made to the Family Court. The following types of maintenance are now available under the FAMILY PROCEEDINGS ACT 1980 -
The FAMILY PROCEEDINGS AMENDMENT ACT 2001 changed the law from 1 February 2002 to place de facto relationships, in part, on the same footing as legal marriages in relation to maintenance. In April 2005, civil unions were established as a legally recognised form of relationship, and civil union couples were brought under the maintenance provisions in the Family Proceedings Act (by the CIVIL UNION ACT 2004).
Note that child support is an altogether different matter from spousal maintenance and is governed by separate rules (see How to apply for child support). However, spousal maintenance is collected and enforced by the Inland Revenue Department, which also administers child support.
When a marriage, civil union or de facto relationship ends, the general rule is that any maintenance paid by one spouse or partner to the other should be temporary only. Maintenance will be payable if certain conditions are met, but each party must assume responsibility, within a reasonable period of time, for meeting his or her own needs, and after that time no maintenance will be payable.
In the case of a marriage or civil union, you can apply for spousal maintenance -
However, the criteria you must satisfy are different depending on whether or not the marriage or civil union has been dissolved (see below).
In the case of a de facto relationship, you can apply for maintenance if you and the other person have stopped living together, provided you have not married or entered into a civil union or begun a de facto relationship with someone else.
When you apply for an order, both you and the other party will need to complete a form setting out your income, assets and expenditure.
After your marriage or civil union is dissolved or your de facto relationship has ended, you are entitled to receive maintenance from the other party for your reasonable needs if you cannot practicably meet all or part of those needs because of any of the following three grounds:
For the purposes of maintenance after a marriage or civil union is dissolved, the dissolution order does not have to be from a New Zealand court. An overseas order may be accepted, provided it is recognised in New Zealand.
If your marriage or civil union has not been dissolved, you are entitled to receive maintenance from your spouse or partner if you can show that you have a reasonable need for it based on any of the following grounds â€“
In the case of a de facto relationship of less than three years, the court cannot award you maintenance unless it is satisfied â€“
In determining the amount of maintenance that should be paid, the court takes into account -
In deciding whether one party is liable to pay maintenance, and how much, the court may consider -
The court may order maintenance to be paid as periodical payments or as a lump sum. In general the court prefers periodical payments.
Lump-sum maintenance can be ordered to be paid as a single payment or in instalments.
As well as maintenance during a marriage or civil union and maintenance after a marriage, civil union or de facto relationship ends, there is a separate right to apply to the Family Court for maintenance from the other natural parent of a child. This is distinct from any entitlement to child support.
This right entitles a natural parent of a child to apply for maintenance against the other parent if -
The period for which the order lasts is a matter for the court to decide. Typically, an order will cease to have effect if the applicant ceases to have day-to-day care of the child.
Further, an order will cease if the applicant later marries or enters into a civil union or de facto relationship, unless the order has already expired.
The court can make a maintenance order against a natural parent if it is satisfied that -
If satisfied of those two matters, the court can order the respondent to pay, for a period that the court decides, either -
A parent will not be awarded maintenance based on that parent's own needs alone if he or she no longer has day-to-day care of the child.
The court can impose any conditions on the order as it sees fit.
The court may order interim maintenance when an application has been made for a maintenance order. This applies to maintenance during a marriage or civil union, to maintenance after the end of a marriage, civil union or de facto relationship, and to maintenance by a natural parent.
The court has a wide discretion in deciding whether or not to order interim maintenance and will base its decision on the particular facts of the case.
Interim maintenance can be paid only in periodical payments, not as a lump sum. Interim maintenance may continue for up to six months.
If you and the other party make a voluntary maintenance agreement between you, this is binding according to the standard law of contract, and is therefore legally enforceable. But the existence of such an agreement does not prevent you applying to the Family Court for maintenance.
If there are children, your voluntary agreement can also be accepted and administered by the Inland Revenue Department under the CHILD SUPPORT ACT 1991 as fulfilling the liability of the non-custodial parent to pay child support. Again, acceptance of the agreement by the IRD does not prevent you applying to the court for a maintenance order.
The Family and District Courts have a wide power to vary, discharge or suspend any existing maintenance order, and in doing so the court applies the same principles that govern the granting of an initial maintenance order.
If you both wish to vary a voluntary agreement that has been accepted by the IRD under the CHILD SUPPORT ACT 1991, you will need to get the IRD to agree to the variation.
If you are a solo parent receiving the domestic purposes benefit, the other party's obligations to pay maintenance are suspended. However, this does not prevent you applying for a maintenance order and you may receive an order that will become effective once your benefit ceases.
Solve your own legal issue cost effectively with these DIY documents
Other related HowTo articles that may be helpful