Spousal Maintenance

A spouse or de facto partner in need of financial assistance from their partner can file an application.

Spousal maintenance can be paid in a few different ways.

It is usually periodic monthly monetary payments from one partner to the other. These can be cash payments, or payment of expenses for a spouse’s daily living costs such as mortgage instalments, payments of rates, utilities, health care costs, and other household expenses.

You can also receive a lump sum final cash payment as part of a property settlement.

Yes. Spousal maintenance can be an essential consideration when finalising a family law property settlement and it may be included by way of a lump sum.

If an agreement for Spousal maintenance cannot be reached, you can apply to the Family Law Courts by lodging an application, a supporting affidavit and a financial statement setting out your current financial position. This application can be made together with a final financial property settlement or on its own.

A person can apply for spousal maintenance from the day of separation from their partner or spouse.

Married couples do not need to wait for their divorce to be finalised.

Yes, and that time limit depends on if you were married or in a de facto relationship.

You only have one year from the date of your divorce order to file a spousal maintenance application. After the 12 months has expired you are required to seek leave from the Court, by proving hardship, in order to file an application for spousal maintenance out of time.

With respect to de facto couples (including same sex couples), a spousal maintenance application needs to be filed within two years from the date of separation. Once the two year period expires you will also be required to prove hardship before being allowed to make an application for spousal maintenance.

It depends. The Family Law Act 1975 states that one party to a  marriage or/de facto relationship is liable to maintain the other party to the extent that one party can reasonably do so and if, and only if, the other party is unable to support her/himself adequately.

It depends. The duration for paying spousal maintenance is assessed on a case by case basis.

It can be paid on an ongoing basis while divorce proceedings are being finalised. Alternatively, it can be paid in one lump sum at the end of a property settlement.

The payment of spousal maintenance can be ordered for an indefinite period of time or it can be ordered for a specific periodic of time with a set end date.

Alternatively, parties can opt out of paying spousal maintenance by entering into a binding financial agreement.

Typically, spousal maintenance payments are limited to a set period of time to enable the other party to receive financial support while they obtain qualifications to support themselves independently.

The Court uses a threshold test, which is sometimes summarised as “need versus ability to pay”. The Family Courts will look at proposed payer’s income, property and financial circumstances to determine your capacity to pay.

The Court also looks at the following factors:

• Which partner has the care and control of a child of the relationship under the age of 18 years.
• Your age and physical/mental capacity for gainful employment.
• The standard of living that is reasonable within the context of the family.
• Any other adequate factors, such as family income and resources, commitments to support oneself and children.

Yes. If a person has applied to the Court seeking provisions for Spousal maintenance payments, the person defending a spousal maintenance application can file a response setting out the reasons why the spousal maintenance application should fail. To be successful, you will need to demonstrate the following:

• You do not have additional funds available after meeting your own reasonable living expenses; and/or
• The party applying is choosing not to exercise their full capacity to earn an income.