Financial support can be important to the welfare of a former spouse or de facto partner post-separation. If you’re worried about your financial position after a relationship breakdown, you may be eligible to receive spousal maintenance. Here’s how to apply for spousal maintenance
Key takeaways
What you need before you apply
It’s important to understand the eligibility criteria for spousal maintenance orders under the Family Law Act. This is often called the need and capacity test. Spousal maintenance payments may be warranted if both of the following are satisfied:
Need. The applicant is unable to meet their reasonable living expenses.
Capacity. The respondent has the capacity to support the applicant after accounting for their reasonable expenses.
Both limbs must be met. Showing that your former partner earns more than you isn’t enough on its own. You need to demonstrate a genuine need for financial support, and that the other party can afford to provide it.
In order to understand each party’s financial circumstances, both have a duty of disclosure. This can involve producing documentation on assets and financial resources, such as:
Bank statements.
Pay slips.
Tax returns.
Gather evidence about your living expenses, including:
Utility bills.
Medical expenses.
Rent or mortgage repayments.
Grocery costs.
Spousal maintenance only relates to your personal expenses. It doesn’t extend to costs associated with the care of a child, which may be covered by a separate child support arrangement.
In addition to your expenses, produce evidence about your earning capacity. This could include evidence like the following:
An existing parenting order or parenting plan that shows the extent of your child caring responsibilities.
Your need for extra training to be able to secure appropriate employment.
Medical records showing healthcare needs that restrict your ability to maintain employment.
Applying to the Court or by agreement
Spousal maintenance may be arranged by married couples on its own or as part of a property settlement. It’s also available to parties in a de facto relationship through de facto partner maintenance. If your former partner agrees to pay maintenance, you may include it in a binding financial agreement (BFA) or apply for consent orders.
An arrangement can be structured as periodic payments made regularly over time, as a one-off lump sum, or as a combination of both. Periodic maintenance is the more common arrangement where the receiving party needs help covering ongoing living costs.
However, if you can’t make an agreement, you may wish to seek maintenance orders through the Federal Circuit and Family Court of Australia (FCFCOA). This is generally seen as a last resort. Seek legal advice before making any legal decisions.
Filing your application with the FCFCOA
Before approaching the Court, you’re usually expected to pursue dispute resolution to try and make an agreement if it’s safe to do so. Once this has been done, you and the respondent may fill out a genuine steps certificate.
Going through court proceedings involves several critical steps. Here’s the basic court process:
Fill out an Initiating Application (Family Law). You can nominate the type of order you’re seeking and essential information about the parties.
Complete a financial statement. This is where you disclose your property and financial resources. This could include bank accounts, business interests, insurance policies, and investments. Part N of the financial statement specifically relates to your expenses and is mandatory for maintenance applications.
Complete a financial questionnaire. You can list the assets and liabilities you and the other party entered the relationship with. You may also detail your contributions, future circumstances, and the impact of any family violence.
Include your genuine steps certificate and an Undertaking as to Disclosure to affirm that you have completed your obligations under the Family Law Act.
The application form and supporting documents can be filed electronically through the Commonwealth Courts Portal. If you’re only seeking maintenance orders, you won’t have to pay a filing fee. The application should then be served on the respondent by a third party over the age of 18.
Filing an application doesn’t mean your matter goes straight to a final hearing. The Court may list your case for a conference or dispute resolution event first, to give both parties another chance to settle. Many maintenance matters are resolved at this stage without a judge deciding the outcome.
Property matters can take months to settle. If you need support in the meantime, your lawyer may file an application for interim maintenance orders. In more pressing cases, you may be able to seek urgent maintenance, which the Court can put in place quickly to provide immediate financial support based on the evidence available.
When your application must be filed
Maintenance orders typically have the same time limits as a property order. These are the following:
Spousal maintenance orders. Apply within 12 months of your divorce order becoming final.
De facto partner maintenance orders. Apply within 2 years of the breakdown of your de facto relationship.
Under limited circumstances, you may get leave of the Court to apply after these times.
What happens if maintenance isn't paid
A maintenance order is legally binding. If the paying party stops making payments, the arrears don’t simply disappear. The Court has enforcement powers it can use to recover what’s owed.
Depending on the circumstances, enforcement action may involve:
An order directing the paying party’s employer to deduct maintenance from their wages and pay it to you.
An order allowing property or assets to be seized and sold to cover the debt.
An order requiring a third party who holds money for the paying party, such as a bank, to pay it to you instead.
A fine, or in serious cases of deliberate non-compliance, imprisonment.
If your circumstances or your former partner’s circumstances change significantly, it may be possible to have the arrangement varied rather than enforced. Seek legal advice early if payments stop, because arrears can build quickly.
Getting help with your application
Financial support paid by one party to a former partner can be crucial if that partner doesn’t have the ability to support themselves after separation. A family lawyer may help you organise maintenance that best suits your needs, such as:
Determining whether you would benefit more from a lump sum payment or periodic financial support.
Considering how a new de facto relationship affects the arrangement.
Assisting with financial disclosure, which is the equal duty of both parties.
Helping you stay within relevant deadlines.
Taking enforcement action if payments aren’t made.
Talk to us about your maintenance application
Bateys Law Firm acts for clients seeking spousal maintenance after separation. If you want to claim spousal maintenance, contact us today.
Disclaimer: This article provides general information only. It is not legal advice. Family law outcomes depend on your circumstances. You should speak with a family lawyer before making decisions about your matter.
