Spousal Maintenance

Spousal Maintenance, who is entitled to it?

Under the Family Law Act 1975, both spouses have a duty to maintain and support the other, even after you have separated. Section 72 of the Family Law Act Spousal maintenance is financial support paid by one party to a marriage to the other party where that party is unable to adequately support themselves financially. This also applies to de facto relationships if your relationship meets the jurisdictional requirements.

Who Can apply?

Spousal maintenance is not an automatic right. You may be able to apply for spousal maintenance if you and your former partner are separated but still married, were married but divorced less than 12 months before applying, or you and your former partner were in a de facto relationship subject to the requirements set out in Section 90Sb and 90SD of the Family Law Act.

When is it payable?

If your former spouse does not have the income to meet their day-to-day living or other expenses, then that spouse has a need for spousal maintenance. Spousal maintenance can only be paid if a need exists, and the paying party has the ability to pay.  You can either apply for spousal maintenance on its own, or at the same time as property settlement matters or as part of your property settlement.

How is it assessed?

There is no prescribed formula to assess how much spousal maintenance a person may have to pay such as there is with child support. It is a discretionary judgement, and the Court considers the needs of the person applying for spousal maintenance and the capacity of the other party’s capacity to pay spousal maintenance. Before making an order for spousal maintenance the Court considers the following about both of you:

  • The age and mental health of each of you;
  • Your income, property and financial resources;
  • Your ability to work;
  • What is a suitable standard of living; and
  • If the marriage has affected your ability to earn an income.

Additionally, if there are children under the age of 18 years or adult children who are disabled, the Court will take into account with whom the children live with.

How to apply for spousal maintenance.

You can make an application for spousal maintenance by filing an application in the Federal Circuit and Family Court of Australia. You will need to ensure that you apply within the time limits otherwise your application may not be heard. You will also need to provide evidence of your need for spousal maintenance. Some things you will need to provide evidence of are as follows:

  • History of work performed during the marriage or relationship and any income that was generated as a result.
  • If you gave up work either during or after the marriage/relationship, why you stopped working and the effect it has had on your career and your income earning capacity in the future.
  • If you have any significant health issues you or your children have experienced whether they occurred before or after separation which has meant you have been unable to secure any employment.
  • Evidence of any income, bills and debts you may have.
  • Lifestyle needs.

You should seek independent legal advice if you are considering applying for spousal maintenance. In the first instance you should try and reach an agreement with your former spouse in relation to spousal maintenance.

When will it cease?

The duration of spousal maintenance is assessed on a case by case situation. How long a party is required to pay spousal maintenance will depend on the particular circumstances of each individual case. Spousal maintenance can be ordered to be paid for an indefinite period of time or it can be ordered for a specific period of time. It can be made as a lump sum payment, or it can be ongoing.

Spousal maintenance will cease to have effect under Section 82 of the Family Law Act on the following events:

  • The death of the party receiving spousal maintenance;
  • The death of the party liable to make payments under the order;
  • The re-marriage of the receiving party.

Should a person receiving spousal maintenance enter into a new de facto relationship, the Court will take into account the financial relationship between you and your new de facto partner when deciding whether you are able to support yourself adequately.

Spousal maintenance will also cease to be payable if the receiving party’s financial situation improves, their responsibility for caring for a child under the age of 18 years changes significantly or their earning capacity improves. To end the payment of spousal maintenance in these situations you will need to make an application to the Court.

If you are considering making an application for spousal maintenance or you are unsure as to whether you would be entitled to receive spousal maintenance, contact the friendly team at Miller Sockhill Lawyers for a 15 minute free consultation.