Adult Child Maintenance

Most children do not gain full financial independence until well after their 18^th birthday. However, in most cases the law only requires parents to support their children until they turn 18. In Australia the Family Law Act states that a child maintenance order can be made for children who are over 18 if financial support is still required. Accepted reasons for requesting a court order for further financial support:

• To be able to complete education;

• Need help with a mental or physical disability.

But what happens when parents separate with adult children, and those children are dependent on their parents? 

The Child Support legislation contains a detailed process for calculating child support. The Family Law Act clearly states that where there are children under 18, the ongoing care of the children is relevant when determining the amount of a property settlement that each parent will receive. The amount of child support paid is also relevant. 

However, the position under the Family Law Act for adult children who continue to live with one parent is not so clear. 

When making Orders for a property settlement (including Consent Orders where the parties have negotiated the settlement themselves), the Court will take into account

1. the commitments that the parties have to support themselves,

2. the children, and other dependents that the party has a duty to support.

This can be interpreted to include adult dependent children – However in most cases, parents are not legally obliged to financially support children who are over 18?

The Family Law Act deals with this issue by giving the Court the power to make maintenance orders for adult children in specific circumstances.  Unlike a child support assessment, an adult child maintenance order is not automatic and is not based on a statutory formula – instead, the maintenance order must be necessary because the child has not completed their education, or has a physical or mental disability. 

Circumstances are key – if the order is necessary, then the Court will need to consider the amount of support that the child requires, and the amount that each parent should pay.

If you have an adult child who is not financially independent because they are studying or have a special need, if there is sufficient income or resources to support that child, then it is possible for you to negotiate (or litigate) an arrangement to provide your adult child with ongoing financial support.

This is a positive for clients who want to provide financial support for their children, but are reluctant to make additional payments to their former spouse or partner. At Fox and Staniland, we can provide detailed and practical advice relating to adult child maintenance and how you can apply. Call us on (02) 9440 1202.