Applying for family maintenance

Check the conditions for your category

For a spouse, the cited provision concerns a person with sufficient means who neglects or unreasonably refuses to maintain their spouse. It excludes an applicant spouse living in adultery and spouses living separately by mutual consent. For a non-marital child or offspring, the provision requires cogent evidence of parentage satisfactory to the Magistrate. Read the full category and definitions before assuming it applies.

Maintenance Act s 2

Who makes the application

A child or disabled offspring may apply personally or through a person with custody. An adult offspring or spouse may apply personally; where they cannot make the application, another person may apply on their behalf. The application can be made to a Magistrate’s Court where the applicant, beneficiary or respondent resides.

Maintenance Act s 4

Written application and assessment

An application for a maintenance order, or enforcement of an existing order, must be written and signed by the applicant or the person applying on their behalf. The Act makes those applications and summonses to respondents or witnesses free of stamp duty. In setting an allowance, the court considers income, means and circumstances. Prepare to explain the relevant needs and means rather than assume that one standard amount applies.

Maintenance Act s 10

Maintenance Act s 2

If circumstances or payments change

A person receiving or ordered to pay an allowance can apply for cancellation or alteration on proof of changed circumstances. If payments are missed, the Act contains enforcement provisions and a separate procedure for attachment of salary. Salary attachment requires the court’s inquiry and statutory conditions; it is not a deduction the recipient can impose on the employer.

Maintenance Act s 8

Maintenance Act s 5

Maintenance Act s 6

Affidavit and an interim allowance

The application must be supported by an affidavit setting out its supporting facts. If the Magistrate considers those facts sufficient, the respondent receives a summons with a copy of the affidavit to show cause. The Magistrate may also make an interim monthly-allowance order while the application is pending. That interim order can be varied or revoked before the final decision. An application and an interim order are therefore different stages; keep any order with the application papers.

Maintenance Act s 11

Understanding salary attachment

Salary attachment is available after an inquiry where maintenance has been unpaid for a period exceeding two months. Before making an order, the Magistrate must give the proposed employer recipient an opportunity to show cause and require salary particulars. No attachment order may be made if the failure to pay was not due to wilful refusal or culpable neglect. The amount must reflect the respondent’s resources and needs and the needs of the person awaiting maintenance. For preparation, organise the existing order, a dated payment record and any available employer details; the court decides whether the statutory conditions are established.

Maintenance Act s 6

Scope of this guide

This guide explains the cited as-enacted publication. Check later amendments, commencement orders and current procedures before relying on it for a particular situation. It does not determine your eligibility, liability or the outcome of a case.