If a married couple has separated or divorced, or a de facto relationship has separated, spousal maintenance may be payable. The general ‘criteria’ about when it applies requires that:
- one party is unable to appropriately support themselves;
- there is an adequate reason that they are unable to support themselves (such as having care of a child under 18, because of their age, or physical or mental inability to work, because they care for a person with a disability, or they work but don’t earn enough to support themselves); and
- the other party has the financial capacity to contribute to the reasonable needs of the party unable to support themselves.
Generally, it is only possible to apply to the Court for a spousal maintenance order within 12 months of becoming divorced ( for married couples – see Section 44(3)(c) of the Family Law Act 1975 and within 2 years from the date of separation ( for defacto couples – see Section 44(5)(a) of the Family Law Act 1975). In some very limited circumstances, it is sometimes possible to apply outside these timeframes, but this is very rare.
Methods of Payment of Spousal Maintenance
The Court has a wide discretion in relation to structuring spousal maintenance payments. By way of example, the Court has ordered :
- That one spouse pay to the other spouse a lump sum amount on a once off basis;
- That one spouse pay to the other spouse a smaller sum to be paid regularly (weekly, fortnightly, monthly etc) for a specified period;
- That one spouse provide a vehicle or accommodation to the other, or alternatively, make arrangements for suitable accommodation or sole occupation of a premises; and/or
- That one spouse pay certain expenses, such as health insurance, loan repayments, or specific bills.
How to apply for spousal maintenance:
Parties should attempt to resolve disputes regarding spousal maintenance before applying to the court. Where possible, direct agreement is always a good option – but beware that if you don’t formalize that agreement and the limitation date runs out, so does the ability to claim spousal maintenance if one of the parties changes their mind!
If there is no agreement, it is possible to attend Family Dispute Resolution which is a type of dispute resolution process – usually mediation. This is generally a quicker option than Court, and much less expensive.
If the parties still cannot agree on a spousal maintenance arrangement, they may apply to the court for a spousal maintenance order. To apply to the Court, you will need to lodge an Application, Affidavit and Financial Statement that provides evidence of a variety of matters including:
- The reasonable day-to-day living expenses of each spouse (and proof of the expenses, such as grocery receipts);
- 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.
Once you have filed your documents, it is necessary to serve them on the other person. The other party then has 14 days to file a Response, Affidavit, and Financial Statement. The Court will list the matter, and may make an urgent or interim spousal maintenance order, or may adjourn the application, sometimes to allow the parties to gather further information. For the best shot at an early Order, it’s important to have properly prepared your documents, and ensure that you have included all of the possible evidence. It’s not enough to tell the Court you’re broke and need money for food – you need to prove that your needs are reasonable, and are not being met.
What is “reasonable” varies from case to case, and you should take advice about it.
Still have questions regarding spousal maintenance, contact us
If you are struggling to make ends meet, or have been served with an Application to pay spousal maintenance, call us to make an appointment with one of our experienced family lawyers. We can help with your spousal maintenance issue – from initial negotiations and mediation right through to Court.