Among the many changes which may come with family law separation, the financial adjustments to living on a single or significantly reduced income is often paramount and difficult. When a person has a tough time supporting themselves financially after the breakdown of a relationship, there may be options to seek spousal maintenance from the other party.
What is family law spousal maintenance?
Spousal maintenance is financial support which is paid by one party of a relationship to the other after separation, in circumstances where the receiving party is unable to support themselves financially, to the same standard they enjoyed during the relationship.
The relevant laws around this issue can be found under Section 72 (in the case of a marriage) and 90SF (for de facto relationships) of the Family Law Act 1975.
Spousal maintenance is not to be confused with child support, where parents have an obligation to financially support their children following separation. Generally speaking, child support is intended for the financial support of children, whereas spousal maintenance is specifically for the benefit of a separating spouse.
When does spousal maintenance apply?
After separation (either as a de facto relationship or marriage), a person can apply to the Court for an Order that their former partner pays spousal maintenance to them.
When making a spousal maintenance application, the person applying must show that they are unable to support themselves adequately:
- because they have the care and control of a child of the relationship; or,
- by reason of their age or physical or mental incapacity for appropriate employment; or,
- for any other adequate reason.
If the person can meet this first threshold test, being that there is a genuine and lawful need for financial support, they must then demonstrate that their former partner has the financial capacity to continue to support them.
Spousal maintenance claims can be complex and technical, so it is important that parties receive legal advice from a family lawyer before proceeding.
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How does the Court decide if spousal maintenance is payable?
In deciding whether making an Order for spousal maintenance is appropriate, the Court will analyse the needs of the Applicant (being the person asking to be paid spousal maintenance) alongside the Respondent’s (the person who is being asked to pay spousal maintenance) capacity to pay.
The Court may consider the following for each of the parties:
- age and health;
- financial resources;
- ability to work; and
- whether the relationship impacted their capacity to earn an income.
The issue of whether one party has the primary care of any child or children of the relationship also impacts the court’s decision to make an order for spousal maintenance.
Spousal maintenance may be particularly important if one party has a significantly higher earning capacity than the other party, especially if the latter party has the care of young children or has health or medical issues which prevent them from working.
Based on an assessment of both parties, the Court will proceed to determine if spousal maintenance should be paid and if so, the terms of payment. The Court will decide how much spousal maintenance is appropriate and for how long the maintenance should be provided.
How is spousal maintenance paid?
Spousal maintenance may be ordered to be paid as a lump sum and/or in periodic payments. Periodic payments are usually only for 1–3 years from the date of the Court Order, although the Court has the power to make them ongoing. A party may defend themselves against a claim for spousal maintenance if they do not believe the other party’s need for maintenance is proportionate to their capacity to pay.
If a party who is receiving spousal maintenance begins a new relationship, the Court will take into consideration the financial relationship between the recipient and their new de facto partner in determining whether spousal maintenance should continue. Further to this, a party will not ordinarily be entitled to continue to receive spousal maintenance from a former partner if they marry someone else.
Time limits for spousal maintenance applications
Applications for spousal maintenance must be made within 2 years from the date of separation for de facto couples and within twelve months of getting a divorce for married couples. Notably, you may apply for spousal maintenance even if you are separated but still married.
How can a family lawyer help?
If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.
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