Did you know that once you enter into a marriage or de facto relationship, in certain circumstances, you or your spouse could be liable to maintain the other in the event the relationship breaks down? This is known as spousal maintenance.
This responsibility to financially assist an ex-partner is set out in the Family Law Act 1975 and exists if one party cannot meet their own reasonable expenses from their personal income or assets and the other party has capacity to pay.
Where this need exists, both parties have an equal duty to support and maintain each other as far as they can, with this obligation continuing sometimes even post separation. This article explains this key area of Family Law in detail.
Spousal Maintenance is different to Child Support
Firstly, it is important to know that spousal maintenance is not child support.
Child support is paid for the benefit of children and aims to ensure the guardians of the children have the financial means necessary to support them. In additionto child support, Federal Circuit and Family Law Court (“Family Court”) may order a party to pay spousal maintenance.
What exactly is Spousal Maintenance?
The Family Court can only make an order for one party to pay spousal maintenance to the other if the partner making the application is unable to adequately meet his or her own reasonable needs and the other partner has the capacity to pay.
The Family Court may consider if one party cannot support themselves adequately by reason of having the care of a child who has not attained the age of 18 years, or by reason of age, physical or mental incapacity for appropriate gainful employment or any other adequate reason.
Maintenance for a former spouse or de facto partner is the division of future income and/or current capital assetsfollowing the breakdown of a relationship. In certain circumstances, separating couples can have an obligation to provide ongoing financial payments in the form of periodic weekly or lump sum payments by way of maintenance for their partner.
An obligation to maintain a former spouse or de facto partner continues for the period specified in a Court Order. Such an obligation may be varied, suspended, or terminated if circumstances change, including where the recipient becomes financially self-sufficient or the payer no longer has the capacity to provide support. The obligation will also cease upon the death of either party.
Time Limits of Applications for Spousal Maintenance
Applications for spousal maintenance for married couples must be made within 12 months of their divorce becoming final. Applications for de facto partner maintenance must be made within 2 years of the breakdown of the de facto relationship.
Applications made after the time limits may be considered, but the Family Court is not obliged to approve them.
What happens when your Ex enters into a new Relationship?
A former spouse is not entitled to spousal maintenance if they marry another person. If they start a new de facto relationship the Family Court will have regard to the financial relationship between that person and their new de facto partner when considering whether the former partner can adequately support themselves.
What does the Family Court consider when making a Spousal Maintenance Order?
Spousal maintenance is not an automatic right. In deciding a maintenance application, the Family Court considers the needs of an applicant and the respondent’s capacity to pay, 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 or de facto relationship.
- Suitable standard of living
The Family Court is likely to make an order for spousal maintenance in situations where one party is at home caring for young children and is therefore unable to work and earn an income. Other circumstances may include where a party has been out of the workforce for a significant period raising children, resulting in reduced skills or employability due to age, extended unemployment, or illness.
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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.
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, in certain circumstances, it may be appropriate that spousal maintenance be paid for a longer period of time.
The calculation and assessment for the need of spousal maintenance requires a deep understanding of family law and time limits apply.
If you need to speak to an experienced family lawyer regarding a relationship breakdown and spousal maintenance payments, please contact Etheringtons Solicitors in North Sydney on (02) 9963 9800 or via the contact form here.