Spouse Maintenance – Fact v. Fiction

Posted on.
By Watkins Tapsell.

American TV is not Australian reality.

There is a lot of misinformation regarding the law which is imported from American television and movies. For instance, we have been led to believe that, like in America, when you get divorced or separated from your partner and earn more income than they do, you will be ordered to pay them alimony so that they will be able to live the lifestyle to which they became accustomed to during the marriage.

According to television, alimony payments are payable for life and are akin to a winning lottery ticket. This perception has been popularised over time and, as someone who has practised law in America, I can personally attest that in some states this is how the alimony laws work.

In Australia, however, the law is quite different. There is no such thing as “alimony”. In Australia, we use the term “spouse maintenance”. What is spouse maintenance? Spouse maintenance is financial support paid by a party to a marriage to their spouse (or ex-spouse) so that they can adequately support themselves. This support can occur after separation or divorce, and is generally limited to a specific time frame.

The key factors in determining spouse support are the payee’s ability to meet his or her own reasonable financial needs and the financial capacity of the payer spouse to pay spouse support. Usually there must be a large discrepancy between the incomes of the parties. Generally, a mere difference in income will not suffice – the gap has to be significant.

Some additional factors that the court considers in a potential spouse maintenance order are:

  1. The ages of the parties;
  2. The health of the parties;
  3. The ability of each party to work;
  4. What constitutes a suitable standard of living;
  5. The effect of the marriage on a party’s ability to earn income; and
  6. In some cases, if one party is caring for adult or disabled children.

Spouse maintenance is not payable for life. Instead, it is considered “rehabilitative”. What this means is that it is designed to be a temporary order to get the party receiving maintenance through a temporary period of their life. Usually a spouse maintenance order would not be for a period of greater than 2 years and in that period the payee would be expected to retrain and become self-supporting. The payer of spouse maintenance can be either spouse and is gender-neutral.

Payment of spouse maintenance can be paid on a periodic basis such as weekly, fortnightly or monthly. Spouse maintenance can also be paid by lump sum as part of an overall property split.

For more information regarding spouse maintenance (as either the recipient or the payer) please contact the Family Law Team at Watkins Tapsell.

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