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Application for spousal maintenance made 20 years after final property settlement. Why the distinction between periodic and lump sum maintenance matters

Wednesday 27th May 2020

By: Melanie Wilson

The Federal Circuit Court case of Blevins  has struck fear in the hearts of many, and highlights a party’s ability to bring an application for spousal maintenance well after separation. 

In Blevins, the application was made 23 years after the parties separated and 20 years after they had a final property settlement.  

The parties’ property settlement orders were made in 1999 and they included an order for spouse maintenance to the wife of $750 per month payable for 10 years. When that order expired in 2009, the parties consented to a further order for the husband to pay the wife lump sum maintenance of $275,000.  That order included a statement under section 81 that the orders were intended to be final.

The wife applied for maintenance in March 2019, after she lost all of her pension income. The wife was aged 69 years and not able to work.

The husband was 71 and had remarried.  His evidence was that he thought the lump sum order finally resolved all financial matters between him and the wife, and that the application was causing his new wife stress.

The central issue was the husband’s argument that the door was closed on the wife’s application pursuant to section 44(3) of the Family Law Act 1975 which provides a limitation period on commencing property and maintenance proceedings 12 months after divorce.

The wife argued that section 44(3) did not apply, as the wife’s application was to vary an existing maintenance order, being the lump sum maintenance order made in 2009 and section 44(3) contained an exception which allowed her to do so.  The wife relied on Atkins & Hunt (2016)  where Murphy J said:

    “As has been seen, s 44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s 74 of the Act so as to seek the revival of “an     order previously made in proceedings with respect to the maintenance of a party”.   Indeed, as has earlier been seen, the Act contemplates applications for maintenance     that sit squarely outside any “finality” said to be effected by earlier orders.”

The respondent’s case was that there was no existing order capable of being varied as the lump sum order made in 2009 had been paid.  He relied on the case Caska & Caska (2001)  to argue that if an order has been complied with and has been perfected, it has ceased to have any further operation.  In that case, Lindenmayer J said:

    “After considering all these cases, I find it difficult to see how it can be concluded that section 83 (1) empowers the court to vary a lump sum maintenance order which has been fully complied with, and still give any meaning and operation to the words ‘in force’ in that subsection.”  

Baker J agreed with the respondent that the lump sum order was not an order ‘in force’ that was capable of variation pursuant to section 83. The form of the wife’s application was an initiating application or new application, and was not described as a variation order pursuant to section 83.  

However, Baker J found that the applicant did not require leave under section 44(3) because, whilst the lump sum order made in 2009 was not an order in force and capable of variation, the original 1999 periodic lump sum maintenance order was an “order previously made” in the proceeding that was capable of “revival” under section 44(3).   Baker J set the matter down for final hearing.

Blevins confirms that applications can be made well after separation if there was a previous periodic order capable to revival, or an order in force capable of variation.  Both practitioners and litigants should keep this in mind when negotiating orders - even an interim spousal maintenance order can be capable of variation many, many years later.


[1] Blevins & Blevins [2019] FCCA 1923 (11 July 2019)

[1] Atkins & Hunt [2016] FamCAFC 230

[1] Caska & Caska [2001] FamCA 1279

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