Spousal maintenance is a responsibility you or your former partner might have to financially support the other person after separation or divorce. Spousal maintenance is not automatic and, in most cases, is only payable where one partner cannot reasonably support themselves and the other person has the capacity to pay maintenance. It may be a series of regular payments or it can be paid in one lump sum.
Parties should attempt to reach an agreement out of court, or negotiate a formal property settlement, before commencing legal proceedings. If an agreement cannot be reached, an application can be made for a maintenance order.
Court Order for Spousal Maintenance
Parties to a marriage have the right to make an application for Spousal Maintenance (section 72 of the Family Law Act), and similar provisions enable parties to a de facto relationship to apply (section 90SE). When assessing an application for spousal maintenance, the court will take into account numerous factors outlined in section 75(2) which include:
- Income, property, debts and financial resources;
- Ability to earn an income;
- A suitable standard of living;
- Children living with you or your former partner.
Common situations that result in spousal maintenance include when a spouse:
- Had to give up work to care for young children and it is either unreasonable for them to obtain work or they do not have necessary skills enabling them to re-enter the workforce;
- Is unable to work due to health issues or because they are suffering with a mental or physical disability;
- Is responsible for taking care of children under 18 years or adult children who are disabled.
When to apply for a Spousal Maintenance order?
There is a strict time limit if you are applying for spousal maintenance for the first time, but once an order has previously been made, time limits do not apply. If applying for the first time, an application must be made to the court within:
- One year of a divorce being finalised for married couples (when a Certificate of Divorce is actually issued by the Court);
- Two years of separation for de facto couples.
An application to the court outside the time limit will be granted in limited circumstances.
We know that the divorce process can be strenuous for both parties. If you would like more information regarding a property settlement matter or any other family law matter, do not hesitate to contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800.