Spousal maintenance obligations are the financial responsibilities one spouse or de facto partner may have to support the other after separation or divorce when that person cannot meet their own reasonable expenses from their income or assets. It is not widely known that, in certain circumstances, this duty can arise when a marriage or de facto relationship breaks down.
This responsibility is set out in the Family Law Act. Where that need exists, both parties have an equal duty to support and maintain each other as far as they can, and the obligation can continue after separation and divorce. The extent of the support depends on what the other party can afford to pay.
If you are separating, divorcing, or considering family law advice, understanding these obligations is important because they affect your legal rights, your financial responsibilities, and your planning after a relationship ends. This article explains what spousal maintenance is, how it differs from child support, who can claim it, when applications must be made, what the court considers, how a new relationship may affect it, and the ways maintenance can be paid.
Spousal Maintenance is different to Child Support
It is important to note that spousal maintenance is not child support.
Child support is paid for the benefit of children and in addition to that the Family Court can order a party to pay spousal maintenance. The Department of Human Services administers Australia’s Child Support Scheme and works with separated parents to manage their child support responsibilities for the benefit of their children.
What is Spousal Maintenance exactly?
The Family Court can only make an order for one party to pay “spousal maintenance” to the other if spousal maintenance is financial assistance or financial support ordered where one party cannot adequately support themselves and the other has capacity to pay.
Maintenance for a former spouse or de facto partner is financial support provided, or financial support paid, by one former spouse or de facto partner to the other after separation. In certain circumstances, separating couples can have an obligation to provide ongoing financial support in the form of weekly or lump sum payments by way of maintenance for their former spouse or de facto partner.
Calculating spousal maintenance is not done by a fixed formula.
This liability to maintain a former spouse or de facto partner can continue until their death or until they have the financial capacity to support themselves. Usually the payment of spousal maintenance is tailored to end upon the occurrence of a specific event, for example, the person receiving maintenance completing training or re-skilling, securing employment or commencing a new de facto relationship.
Time Limits
Applications for spousal maintenance for married couples must be made within 12 months after the divorce order becomes final, whereas applications for de facto partner maintenance must be made within 2 years of the breakdown of the de facto relationship.
It is possible to apply outside the time limits but the Court does not always grant these late applications. Applications for urgent maintenance can also be filed for immediate needs.
What if the person is in a new relationship?
A former spouse may stop being eligible for spousal maintenance if they marry another person. If you start a new de facto relationship, the court will consider the financial relationship between you and your new partner when deciding whether you can continue to receive spousal maintenance.
What does a Court consider?
Spousal maintenance is not automatic. When assessing eligibility, a Court considers the applicant’s needs and the respondent’s financial circumstances and capacity to pay, including the parties’ eligibility for spousal maintenance.
In deciding a maintenance application, the Court considers factors under section 75(2) of the Family Law Act 1975, including the parties’:
Age and health
Income, property, and financial resources
Ability to work
Ability to earn an income as a result of the marriage
Length of the relationship
Reasonable standard of living
It is most likely to be ordered in cases where one party is at home with the care of young children and therefore unable to exercise their income earning capacity. It may also be ordered where a person cannot meet reasonable living expenses from their own income or is unable to gain employment.
Other examples could be where one party has been out of the workforce for a significant period of time raising the children and has become de-skilled or unemployable due to age, or where one party was unable to work due to illness.
Summary
A party’s obligation to pay spousal maintenance may be discharged in various ways including through periodic and regular payments or by way of a lump sum payment. It may also exist for different periods of time. Unlike property settlement, which deals with dividing assets and liabilities, spousal maintenance obligations concern ongoing support.
Although spousal maintenance is generally intended to operate only for a short period of time following separation to enable applicants to get back on their feet, spousal maintenance aims to provide ongoing support until the recipient can regain financial independence where appropriate.
The calculation of and assessment for the need of spouse maintenance or de facto maintenance requires a deep understanding of family law and time limits apply. These matters depend on sufficient income, the parties’ financial circumstances, and legal strategy rather than a simple formula, so understanding spousal maintenance laws is important.
If you are facing financial issues after separation or divorce, seek legal advice or expert legal advice from a family lawyer to protect your financial future. A lawyer can assist with legal representation and options such as a binding financial agreement, so seek expert legal advice if you need help formalising obligations.
Disclaimer: The information provided in this blog is for general informational purposes only and does not constitute legal or conveyancing advice. It may not reflect current legal developments and is not tailored to your situation. As such, it should not be relied upon as a substitute for personalised legal guidance. Bateys Law Firm takes no responsibility for any loss or damage incurred due to reliance on this content. You should always seek independent legal advice appropriate to your circumstances before you make any legal, conveyancing, or financial decisions.
