What is Spousal Maintenance?
Spousal maintenance is financial support paid by a spouse or de facto spouse after a divorce or separation. It is often where one party has a higher income earning capacity in comparison to an ex-partner who is unable to adequately financially support themselves due to having a lower income earning capacity.
It may also be applicable if one party has a substantial value of assets and where their ex-partner is unable to adequately financially support themselves.
If the parties cannot reach an agreement as to any spousal maintenance, then generally the lower income earning party will make an application to the court for a spousal maintenance order.
The Family Court and the Federal Circuit Court both have jurisdiction to hear matters of spousal maintenance.
When is Spousal Maintenance Payable?
If a married couple has separated or divorced, spousal maintenance may be payable, provided that the criteria are met.
For de facto couples that have separated after 1 March 2009, spousal maintenance may also be payable.
Methods of Payment of Spousal Maintenance
Spousal Maintenance may be paid by regular payments or in a lump-sum payment.
Parties should attempt to resolve disputes regarding spousal maintenance before applying to the court. If they cannot agree between themselves, they can participate in a dispute resolution process, such as mediation. Mediation is generally a less expensive option to going to court and is usually quicker. We are able to assist in helping you to choose an appropriate mediator and to represent you in mediation if you elect this option. We can also help to write up the final agreement that you and your ex-partner agree to.
If the parties still cannot agree on a spousal maintenance arrangement, they may apply to the court for a spousal maintenance order. To get a spousal maintenance order, the party applying for spousal maintenance will have to show to the court that:
- They have a financial need for spousal maintenance; and
- That the other spouse has the financial capacity to provide this maintenance.
Seeking legal advice to help compile an application to the court will ensure that the application includes all necessary information.
In determining the issue of spousal maintenance, the court will consider:
- The reasonable day-to-day living expenses of each spouse;
- Which party the children of the relationship are to live with;
- The age and health of both parties;
- The income, property and financial resources of each of the parties;
- The ability of the spouse applying for spousal maintenance to work;
- A suitable standard of living for both parties; and
- If the marriage has affected the lower income earning spouse’s ability to earn an income.
Section 44(3)(c) of the Family Law Act 1975 states that parties to a marriage are eligible to apply for maintenance if the application is made within one year from the date of their divorce. Similarly, parties to a de facto relationship may apply for maintenance if the application is made within two years from the date of the termination of a de facto relationship (s 44(5)(a)).
If an application is not made within these time frames, special permission will need to be sought from a court. We recommend that you speak to a lawyer about these matters.
Change in Spousal Maintenance Orders
A maintenance order will end if the party receiving spousal maintenance re-marries (unless there are exceptional circumstances).
If the party receiving spousal maintenance begins a new de facto relationship, the court will have regard to the financial interdependency of the parties to the new de facto relationship.
A party’s entitlement to receive spousal maintenance may also be terminated if:
- Their financial situation improves;
- Their earning capacity improves; or
- Their responsibility for caring for the children of the terminated relationship changes.