Maintenance for a former spouse or de facto partner is the division of future income and/or current capital assets following the breakdown of a marriage or de facto relationship. In certain circumstances, separating couples can have an obligation to provide ongoing financial payments (ie, weekly or lump sum payments) by way of maintenance for their former spouse or de facto partner.

In broad terms, one of the parties to a marriage or de facto relationship can be liable to pay ongoing financial support for the other if:

• one former partner to the marriage or de facto relationship is unable to adequately support himself or herself by reason of having the care and control of a child of the marriage or de facto relationship, by reason of age or physical/mental incapacity for appropriate gainful employment or any other adequate reason so that their reasonable financial needs are met; and
• the other partner to the marriage or de facto relationship has the financial capacity to financial support such needs (ie, pay for them from available income or assets).

Any liability to maintain a former spouse or de facto partner can continue until their death or until they have the financial capacity to support themselves, such as from the proceeds of their property settlement, the investment of assets, employment or living in a further de facto relationship or marriage with a third party.

A Binding Financial Agreement is a form of contract under the Family Law Act. These contracts are a legal mechanism available to people in the following situations:

1. 1. before the marriage or de facto relationship commences (these types of agreements are often referred to as "pre-nuptials");
2. 2. during a marriage or de facto relationship that is still together (i.e. to re-arrange the property of you and your spouse or de facto partner even though you may not be separated or intending to separate);
3. 3. during a marriage or de facto relationship but after separation (ie, as a way of recording and formalising a final agreement as to property settlement and/or spouse maintenance between you and your spouse or de facto partner); and/or
4. 4. after separating and where a Divorce Order has been made for the end of the marriage (ie, these types of Agreements are also a way of recording and formalising a final agreement as to property settlement and/or spouse maintenance between former spouses only).

The legal point of a Binding Financial Agreement is that, if properly made, it replaces the legal ability of a court to deal with and make an order regarding the matters that are covered in the Binding Financial Agreement. For example, in a Binding Financial Agreement both people to a marriage or de facto relationship that has broken down can formally waive their legal ability to make a claim for maintenance from the other person in the future. This is a legal outcome with the highest form of certainty from future claims for maintenance into the future and the best way that this can be achieved is through a Binding Financial Agreement.

The rules regarding Binding Financial Agreements are technical and include a requirement for both people to have independent and separate legal advice in writing from a lawyer. In order for a Binding Financial Agreement to be legally effective then the requirements under the Family Law Act must be strictly followed. If the requirements are not followed then the Binding Financial Agreement could be seen as of no legal effect by a court meaning that the “door” for claims on the matters that the Agreement seeks to cover (such as property settlement and spouse maintenance) would be left "open".

Yes.

Section 31(2) of the Family Law Act provides the Family Court with an extra-territorial jurisdiction both as regards “persons” and “things” in broad, general language. Australian court orders are made against the individual (spouse or partner) or third parties (such as companies) and, as such, are of worldwide application (ie, the Australian court can make an order dealing with ownership rights in assets outside of Australia).

The power to adjust property interests operates in personam, i.e. against the party personally and not in rem, i.e. against the property. Thus, there is no impediment to taking foreign property into account or making Orders that the parties transfer or sell that property.

Enforceability of an Australian Order in the foreign jurisdiction where the assets or income are located needs to be carefully considered with advice from a local lawyer. However, it is also important that the Australian requirements under the Service and Execution of Process Act 1992 are followed.

Generally yes but it depends on the specific country and form of order.

Assuming a foreign Order for an amount of money payable under a property settlement needs to be enforced in Australia certain countries are specified in the Foreign Judgments Regulation 1992 and generally put this makes enforcement easier as it is possible to register the Order at the Supreme Court of NSW and then the foreign order is like a judgment of the Supreme Court of NSW. You can look up the countries listed in the Foreign Judgments Regulation 1992 here (scroll to the bottom):

www.comlaw.gov.au/Details/F2004C00005

Not every judgment of a country or state listed win the Foreign Judgments Regulation 1992 will be capable of registration in the Supreme Court of NSW so it is important to check the order with a lawyer.

It is not necessarily "fatal" if the order you need to enforce is: made by a country or state that is not listed in the Foreign Judgments Regulation 1992; not capable of being registered with the Supreme Court of NSW: or the order is about something other than an amount of money. None of the states of America are listed in the Foreign Judgments Regulation 1992 and family law orders can often require an event to occur (such as the sale of a house located in Australia) as opposed to payment of a specific amount of money. Appropriate judgments of a foreign court can be recognised and enforced under the “common law” and “equity” powers of the Supreme Court of NSW.

There are specific Rules about the registration and enforcement of a foreign order made about: the care of children, spouse maintenance ("alimony" in the USA), and child support/ child maintenance.

A final foreign order about the care of a child made in the countries and states specified as "prescribed overseas jurisdictions" in the Family Law Regulation 1984 can be registered and enforced in Australia by the Family Court. You can look up those countries and states here:

www.comlaw.gov.au/Details/F2013C00868/Html/Text#_Toc369093485

The foreign order can only be registered in Australia if the child or one of the parents or another person with rights in respect of the child is located in Australia.

The "prescribed overseas jurisdictions" are relatively limited and are mostly the USA states. Importantly and with the exception of New Zealand no counties from the Asia-Pacific are listed as "prescribed overseas jurisdictions". If you are proposing to enter into an order about a child in a country other than Australia or one of the “prescribed overseas jurisdictions” then it is prudent to consider entering into a “mirror order” in Australia. A “mirror order” is simply an Australian order that reflects what is being agreed in the foreign place under Australian law.

A foreign order about spouse maintenance, child support or child maintenance made in the countries and states specified as “reciprocating jurisdictions” in the Family Law Regulation 1984 can be registered and enforced in Australia. You can look up those countries and states here:

www.comlaw.gov.au/Details/F2013C00868/Html/Text#_Toc369093486

The process of registration and enforcement is mostly handled by Child Support, which is part of the Australian Department of Human Services.