How does Spousal Maintenance operate?

Posted on.
By Watkins Tapsell.

What is Spousal Maintenance?

Spousal Maintenance is financial support paid by a party to a marriage to their husband or wife (or their former husband or wife) in circumstances where they are unable to adequately support themselves.

Under the Family Law Act, a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

When can I apply for spousal maintenance?

Parties can apply for spousal maintenance, at any time after separation, even in circumstances where they are living separately under the one roof.

How is spousal maintenance calculated?

Maintenance is not automatic. The Court looks at two key matters when determining a spousal maintenance application, those are:

  1. Does the Applicant have a need (i.e. do they have the ability to meet their own reasonable financial needs ?); and
  2. Can the Respondent afford 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. In deciding a maintenance application, the Court will consider the following, in relation to both parties:

  • age and health;
  • income, property, and financial resources;
  • ability to work;
  • what is a suitable standard of living; and
  • if the marriage has affected a party’s ability to earn an income
  • In some cases, the Court will also consider whether one party is caring for adult or disabled child/ren.

How long is Spousal Maintenance payable?

Spousal 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.

There is no firm and fast rule for how long spousal maintenance will be payable because each matter is determined on its own merits, however, 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 spousal 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.

What if we weren’t married?

Parties to de facto relationships cannot make an application for spousal maintenance. However, in certain circumstances one party may be able to apply for de facto partner financial support from their former de facto partner in circumstances where they cannot adequately support themselves.

Is there a time limit to apply for spousal maintenance/de facto partner financial support?

  • If you are or were married you must apply for spousal maintenance within 12 months of your divorce becoming final.
  • If you were in a de facto relationship you must apply for de facto partner maintenance within 2 years of the breakdown of your de facto relationship.
  • If you do not apply within these time limits, you will need special permission from the Court to proceed out of time. This is not always granted.

For more information regarding spousal maintenance, please contact the Family Law Team at Watkins Tapsell.

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