Introduction
Q1: Can I apply for spousal maintenance years after my divorce?
A: You can, but only in specific circumstances. If a maintenance order was already made in your marriage within the original time limit, the law may let you come back for support many years later, even decades after the divorce. Reference: Blevins [2019] FCCA 1923
Q2: Does the 12-month time limit under section 44(3) always block a late claim?
A: The time limit does not bite if your application revives an order that was first made in time. Section 44(3) targets brand new claims, so an application to bring an earlier order back to life sits outside the 12-month deadline. Reference: Atkins & Hunt [2016] FamCAFC 230
Q3: Is reviving an old maintenance order the same as making a brand new application?
A: These are two different things in law, and the difference decides everything. Reviving an order made in time needs no permission from the court, while a fresh out-of-time claim needs leave and proof of hardship. Reference: Blevins [2019] FCCA 1923
How does the section 44(3) time limit affect spousal maintenance after divorce?
The Family Law Act gives you a window to sort out money after a divorce, and that window is short. Section 44(3) sets the deadline for a fresh spousal maintenance claim.
Proceedings for spousal maintenance shall not be instituted after the expiration of 12 months after the date on which the divorce order took effect, except by leave of the court or with the consent of both parties.
—— section 44(3) of the Family Law Act 1975
The point of this rule is finality. The law wants former spouses to be able to move on without the fear of a surprise claim landing years down the track. So if you separate, divorce, and do nothing about maintenance for more than a year, the front door is locked.
It is not bolted shut, though. If you miss the 12-month deadline, you can ask the court for leave to apply out of time. Under section 44(4), the court can only grant that leave if it is satisfied that hardship would be caused to you or a child of the marriage if leave were refused. This is a discretionary decision. The court weighs the hardship to you against the prejudice the other party would suffer from being dragged back into litigation after building a new life.
Here is the part most people miss. Whether the 12-month limit applies at all depends on how your application is characterised. If you are starting from scratch with no history of maintenance orders, the limit is a strict gatekeeper. But if a maintenance order was made in your marriage within time, the door may still be open many years later, because liability for spousal maintenance does not automatically end when the marriage ends.
The parties were aged 69 and 71. They had separated 23 years earlier and divorced 21 years earlier. During the marriage two maintenance orders had been made, one in 1999 for periodic payments and one in 2009 for a lump sum of 275,000 dollars. The 2009 order even carried a notation that it would finally determine the husband's obligations. Then in 2017 the wife lost her pension eligibility and ran out of savings, so she filed a new application for 400 dollars per week.
The husband asked the court to dismiss the claim straight away. He argued he had achieved finality through the earlier payments, that the wife was 21 years past the divorce and far outside any time limit, and that he would be prejudiced because he had since remarried and settled his finances.
Outcome: The court let the wife's application proceed. It held that the section 44(3) restriction had fallen away once the first maintenance order was made in time, so the wife was seeking a new order in proceedings where maintenance had already been dealt with. She did not need leave to apply out of time, and the case went on to trial to test whether she genuinely needed the money and whether the husband could afford it.
I consider that the applicant therefore does not need to obtain leave pursuant to s 44(3) of the Act. This means that potentially the respondent may be required to pay spouse maintenance, if he has the ability to pay and the applicant can demonstrate a need. This will be determined at trial.
For the wife, the time limit never even entered the picture, and the reason was set decades earlier. So before you assume your own claim is dead, dig out any old court orders from the marriage.
Why does reviving an old order beat the spousal maintenance time limit?
The whole difference turns on one section. Section 83 of the Family Law Act lets the court vary, discharge, suspend, or revive an earlier maintenance order. Revival is the key word. If you are asking the court to bring an order back to life rather than create a brand new liability, you are not really making the kind of fresh claim that section 44(3) was written to stop.
This is the reasoning the Full Court worked through in Atkins & Hunt [2016] FamCAFC 230. The court looked at the ordinary meaning of revival, being the act of something becoming operative or valid again, and held that an application to revive an order previously made sits outside the 12-month limit. As long as a maintenance order was once made in time in that marriage, the court keeps its power to hear a later claim, no matter how many years have passed.
Section 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, the Act contemplates applications for maintenance that sit squarely outside any finality said to be effected by the earlier section.
This is not a one-off view. The Full Court has followed the same reasoning in later cases, and Blevins applied it directly to let a 21-year-late claim proceed. So the practical takeaway is about your paperwork, not your patience. A spouse who got a maintenance order in time decades ago is in a far stronger position than one who never applied, even if both come back to court on the very same day.
What does the court check before granting spousal maintenance family law claims?
Getting through the door does not get you the money. Once the timing is sorted, you still have to pass the real test, and that test is need against capacity.
Section 72 sets the threshold. A party is liable to maintain the other only to the extent that they are reasonably able to do so, and only if the other party cannot support themselves adequately. The court measures your need through the factors in section 75(2). That means your age, your physical and mental capacity for suitable work, whether you have the care of children, and what counts as a reasonable standard of living for you. The court must also disregard any income-tested pension or benefit when it decides whether you actually need maintenance.
The other half is the payer's ability to pay. Under section 74 the court can make whatever order it considers proper, but only after a hard look at the other person's income, property, and financial resources. If they cannot meet their own reasonable commitments, the court will not order maintenance no matter how strong your need is.
This was a de facto relationship of about four years with no children together, and it was decided under the de facto maintenance provisions. The judge treated those provisions as following the same pathway as a married couple, a threshold finding under section 72, then the section 74 and section 75(2) factors. The wife held very few assets and had only a modest earning capacity, while the husband had a high income and a large asset pool.
The husband disputed that she had any genuine need. He argued that a family member was a financial resource available to her, and that she was not using her full earning capacity. The court rejected the financial resource argument and found that her limited earning capacity had been affected, at least in part, by the relationship and by family violence it accepted had occurred.
Outcome: The court was satisfied that she could not support herself adequately and that the husband plainly had the capacity to pay, so it ordered a lump sum of 47,555 dollars in spousal maintenance instead of ongoing weekly payments.
Given the level of his income and (for example) the voluntary nature of his contribution towards superannuation, I am satisfied that he is capable of providing lump sum spousal maintenance to the de facto wife.
What the court weighs here is your real earning capacity, not just whether you are physically able to hold down a job. Health, age, and what happened during the relationship all feed into whether you can support yourself adequately.
When will a court grant or refuse spousal maintenance after divorce?
Even with the right to apply, the result is never automatic. The court is balancing two pulls: the value of a clean break against the ongoing obligation spouses owe each other. A few factors tend to decide which way it goes.
The first is the history of orders, which can remove the time-limit hurdle entirely, as Blevins showed. The second is the reason for the delay and your current situation. A spouse who supported themselves for 20 years and then suddenly lost a pension or fell ill presents a genuine change of circumstances. The third is prejudice to the payer. If they have rebuilt their life and shared out their assets on the understanding that no further claim was coming, the court is more cautious about a large new order. The fourth is the type of maintenance, because urgent maintenance under section 77 is treated differently from periodic or lump sum maintenance under section 74.
The wife was 64 and the husband was 97 and living in a nursing home, with his affairs managed by his daughter. The couple were still married and not separated, so the court's power to order maintenance came straight out of the marriage. The wife applied for urgent maintenance under section 77 to cover pressing periodontal and dental work costing about 5,245 dollars, and she also sought periodic maintenance of 943 dollars per week.
The daughter resisted, arguing there was no immediate need and pointing to the Hayson case, which treats section 77 as reserved for genuinely urgent situations. The wife answered with evidence that her dental problems were pressing and that she had used up her health insurance.
Outcome: The court granted the lump sum for the dental work because it was an immediate, one-off need, but it refused the urgent weekly maintenance. Once expenses like rent were set aside, because she was living in the matrimonial home, her pension income was enough to cover her day-to-day costs until a proper interim hearing.
Urgent maintenance orders are often referred to as stop-gap orders which are provided to assist with an immediate need of the spouse until a hearing can be set down for spousal maintenance orders pursuant to sections 72 and 74 of the Act.
Getting in the door and winning the money are two separate fights, and the comparison below shows why.
| Comparison | Blevins [2019] | Sinclair [2012] |
|---|---|---|
| Years after divorce | 21 years | End of a 50-year marriage |
| Prior maintenance orders | Yes (1999 and 2009) | No prior maintenance orders |
| Main issue | Could the wife apply out of time? | Did the husband need maintenance after the property split? |
| Legal basis | Revival of a prior order under s 83 | Need and capacity under s 72 and s 75(2) |
| Outcome | Leave not required; allowed to proceed to trial | Maintenance dismissed; property award was enough |
Decisive factor: In Blevins the fight was about the procedural right to ask for money, and the earlier orders meant the wife did not have to prove hardship to get through the door. In Sinclair the husband was already through the door, but he lost on the substance because his 1.1 million dollar property settlement, including a home and an annuity, met his needs. Even when you have the right to apply years later, you still have to prove a genuine need that nothing else can meet.
If you want to understand the related deadlines and tests, it helps to read around this topic. For the rules on how long you have to claim a property settlement, see How Long After Separation Can You Claim Property in Australia?. For how courts assess maintenance when one parent stepped back from work, see Spousal Maintenance for Stay-at-Home Parents in Australia. And for support that runs to grown children rather than a former spouse, see Adult Child Maintenance in Australia: Eligibility and Why Applications Fail.
Summary
Prior orders are a lifeline. If a maintenance order was made within 12 months of your divorce, you may be able to revive it decades later without asking the court for leave to apply out of time, as the wife did in Blevins.
The clean break is not absolute. Courts prefer to end financial ties, but the law accepts that a spouse's liability for maintenance can persist for life or until the other party remarries.
Property settlement comes first. The court usually asks whether a property adjustment can meet your needs, and if it can, a maintenance claim will likely fail, as the husband found in the Blevins and Sinclair comparison above.
Urgency needs proof. If you need money straight away for something like medical or dental work, section 77 urgent maintenance is available, but only if the need is genuinely pressing and you have no other way to pay, as Milano & Nolan shows.
Your pension is set aside. When the court decides whether you need periodic maintenance, it must ignore your government pension and assess you on your private income and assets, which is part of how the threshold worked in Ferman & Lapham.
| Correct approach | Wrong approach |
|---|---|
| Check for any maintenance order made during the marriage before assuming your claim is out of time. | Assuming the 12-month deadline automatically kills any late claim. |
| Frame the application as a revival under section 83 where earlier orders exist. | Treating every late claim as a fresh application that needs leave. |
| Show a genuine need that a property settlement cannot cover. | Expecting maintenance after a property award that already meets your needs. |
| Keep proof that an urgent expense is pressing and unfunded. | Asking for ongoing weekly payments when your income already covers daily costs. |
