This chapter begins by examining the concept of alimony, which will provide the historical and theoretical background of maintenance understood as a right, but which is limited in scope in the current provisions of the Family Law Act 1975 (Cth) (‘FLA’). Drawing on our analysis of property distribution in the previous chapter, this chapter will further develop the analysis of family law as maintaining the unequal effects of economic dependence in heterosexual relations in marriage, whether de jure or de facto.
The property division provisions of family law are not very relevant in poorer families, where no or very little property is available for distribution. However, the effect of the philosophy of the clean break principle in family law functions to delegitimise ongoing maintenance in these families as well. The economic dependence generated in an ongoing relationship becomes the individual problem of the financially weaker spouse. Moreover, at the breakdown of a marriage the legal discourse changes from marriage as a partnership with different but complementary roles, to one that is more about individual autonomy and self-sufficiency. While property provisions appear to acknowledge the need to compensate the caregiver, in cases where not much property is available, the expectation is that at the end of the marriage both parties should be able to fend for themselves. This analysis will illustrate the significance of family law moving between these different conceptions of relationships: as a partnership between two interdependent parties on the one hand, and as a contract between two equal partners on the other.
We will develop our argument by analysing the specific provisions of the FLA in the context of the widespread social reality that most women are neither generating incomes to the same extent as men nor generally the owners of substantial property in their own right. An analysis of the legislative provisions and case law on maintenance will lend support to our argument that there is an urgent need to revisit the maintenance discourse in family law.
History of the concept of alimony and maintenance
In any discussion of spousal maintenance the issue is, to put it starkly: why are women dependent financially, and why is it the responsibility of their former husbands to provide for them? This can be answered only if the historical development of ideas about marriage, divorce and financial work are considered together.