Spousal Maintenance
After a separation or divorce, there may be an imbalance between the financial capacity for the partners to support themselves. For example, there may be a disparity in income because one partner pursued career opportunities during the relationship while the other gave up their career to contribute in other ways.
If you are not in a position to support yourself after separation or divorce, and your former partner is in a financial position to provide support, you may be eligible for spousal maintenance.
What is spousal maintenance?
Spouse maintenance is financial support paid by one spouse or partner to another after a relationship ends. It may be payable if one party is unable to support themselves and the other party has the capacity to assist them financially. It applies to both marriage and de facto relationships.
An order for spousal maintenance is generally made for a limited period of time with the intention of providing a former spouse with some support while they re-establish themselves and set up for their future.
Orders can be made on an urgent, interim, or final basis and can provide for payments to be made periodically (for example, fortnightly or monthly) or in a lump sum.
Spousal maintenance is separate from child support and child maintenance payments, which are paid for the benefit of a child. A party can be ordered to pay both spousal maintenance and child support, however, the Court may take into consideration any child support payable when determining an application for spousal maintenance.
Applying for spousal maintenance
An application for spousal maintenance is made to the Federal Circuit and Family Court of Australia and must be made within 12 months of the finalisation of a divorce or within 2 years after the breakdown of a de facto relationship.
An applicant for spousal maintenance must show firstly, that they are unable to adequately support themselves and secondly, that their former spouse or partner is in a position to contribute to them financially after meeting their own reasonable living expenses.
There is no set formula to determine spousal maintenance, rather the Court will consider a range of factors to assess the circumstances of a particular situation. Some of these factors include:
- the assets, income, financial resources, and liabilities of each party
- the age and health of the parties
- the parties’ capacity for gainful employment
- the parties’ respective abilities to earn an income
- the impact the relationship has had on each party’s ability to earn
- a suitable standard of living that is reasonable in the circumstances
- whether there are children and who they live with/spend time with
Spousal maintenance is determined in light of the overall property settlement.
When determining the income available to the applicant spouse, the Court must disregard any entitlement of the applicant to an income-tested pension, allowance, or benefit. An entitlement to spouse maintenance ends when the receiving spouse remarries or commences a de facto relationship.
A spousal maintenance application requires careful preparation, and a number of financial documents will be needed as evidence. Our lawyers can help you to understand your prospects of success for a spousal maintenance application and prepare the documentation required.
If you need assistance, contact us at [email protected] or call 02 6622 5566 for expert legal advice.