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 and exists if one party cannot meet their own reasonable expenses from their personal income or assets.

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 after separation and divorce. 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 children have the financial means necessary to support those children. In addition to child support, the 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.

Maintenance for a former spouse or de facto partner is the division of future income and/or current capital assets following the breakdown of a relationship. In certain circumstances, separating couples can have an obligation to provide ongoing financial payments in the form of weekly or lump sum payments by way of maintenance for their partner.

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 completing training or re-skilling, securing employment, or commencing a new de facto relationship or marriage.

Time Limits

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.

It is possible to apply outside the time limits, but the court does not always grant these late applications.

What if the person is in 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 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 a Court consider when making a Spousal Maintenance Order?

Spousal maintenance is not an automatic right. In deciding a maintenance application, a 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;
  • Suitable standard of living.

An example of when a court will most likely make an order for spousal maintenance is in cases where one party is at home caring for young children and therefore is unable to work and earn income.

Other examples could be where one party has been out of the workforce for a significant period of time raising children and has become de-skilled or unemployable due to age, being unemployed for an extended period of time, 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 of and assessment for the need of spousal maintenance requires a deep understanding of family law and time limits apply.

If you know someone who needs help and would like to have a confidential discussion please arrange for them to call Etheringtons Solicitors on (02) 9963 9800 or via the contact form here.