If you have separated from your spouse or de facto partner, you may be entitled to claim spousal maintenance.
Spousal maintenance is money paid by one party to the other party of a former relationship in circumstances where the person receiving the financial assistance cannot adequately meet his or her reasonable living expenses.
Under the Family Law Act 1975 (Cth) spouses and de facto partners have an obligation to maintain and support each other. This obligation continues after a relationship ends if a party is unable to meet his or her own reasonable expenses from personal income or assets and the person paying maintenance has the financial capacity to pay maintenance.
When dividing property after separation a ‘clean break’ principle applies. This means that arrangements for the division of property should, where possible, provide finality between the parties. Accordingly, spousal maintenance is not often applicable as it creates an ongoing financial relationship between the parties. Despite this, there are cases in which it is appropriate and justified for spousal maintenance to be ordered.
Am I entitled to spousal maintenance?
Spousal maintenance may be ordered on an interim basis, pending final property orders, or on an ongoing basis.
Generally, a significant ‘gap’ between the respective earning capacities of the parties must exist for a party to be entitled to maintenance.
The Court considers the financial needs of the applicant and the financial capacity of the higher income earner, and exercises discretion as to whether it is just and equitable to order maintenance and, if so, the amount and frequency of payments.
Spousal maintenance is determined on a case by case basis and in terms of the overall property settlement. Generally, the parties will need to make genuine attempts to resolve maintenance disputes before proceeding to Court.
The capacity for an applicant to support herself or himself is assessed in consideration of his or her responsibilities for caring for minor children of the relationship and the effect that his or her age, physical or mental incapacity has on gaining suitable employment.
The list of matters a Court considers is extensive and includes:
- the age and health of the parties;
- the income, property and financial resources of the parties;
- the parties’ respective abilities to earn an income and the impact that the relationship has had on each parties’ ability to earn;
- the parties’ responsibilities towards supporting another person or a child of another person;
- the eligibility of either party for a Government pension or allowance or superannuation payment;
- a standard of living that in all circumstances is reasonable;
- any other fact or circumstance that the Court considers relevant and should be taken into account.
The following are typical circumstances where maintenance is likely to be ordered:
- Where the recipient has the primary care of young children. Whilst there is an obligation for an applicant to seek employment, it is considered appropriate for that person to maintain the role of primary caregiver, usually until the children commence school. In such cases maintenance may be paid on an interim basis and to cover a ‘retraining’ period to assist the primary caregiver to re-enter the workforce after the children start school.
- Where the applicant of a lengthy marriage is unable to work due to ill health, age or limited work prospects.
- Where one party is wealthy and has a high income and the applicant requires maintenance to meet expenses
How do I apply for spousal maintenance?
A spousal maintenance application must be made within twelve months of finalising a divorce or within two years after a de facto relationship ends. Applications are made to the Family Court or Federal Circuit Court and late applications may only be made in very
The application will include submissions setting out the financial position of the parties, the history of their relationship, the care arrangements for the children and the respective working capacity of the applicant and respondent.
The application should be supported by evidence demonstrating the needs of the applicant and the inability for the applicant to financially meet those needs. This will include financial statements and, where relevant, medical reports setting out any health issues and how these affect the applicant’s earning capacity. Job search diaries and details of any training necessary to re-enter the workforce may also be relevant.
The Court may order urgent spousal maintenance in circumstances where there is an immediate need for financial assistance, but it is not practicable at the time to determine the application. Generally, maintenance will be ordered for a defined period as a ‘stopgap’ until the application is finally assessed.
An application for spousal maintenance must be prepared carefully and supported with appropriate evidence. Each case is different and is assessed according to the relevant circumstances.
If you think that you may be entitled to spousal maintenance, we recommend you obtain advice and assistance from an experienced lawyer as soon as possible.
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