Sep 2

What is spousal maintenance and how does it work?

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What is spousal maintenance and how does it work?

As set out in the Family Law Act (1975), a married or de facto spouse is able to claim spousal maintenance post separation. It is payable provided that there is proof of a substantial difference in the personal incomes of both parties at the time of separation.

If it is found that a spouse is entitled to spousal maintenance, then the spouse that earns a higher income will be obligated to provide the other with financial support. Depending on the individual circumstances of the case, this amount can be paid periodically or all at once.

According the Section 72 of the Family Law Act (1975), a spouse is entitled to financial maintenance to the extent that the other is able to support them, if they are unable to adequately support themselves due to:

  1. Being the primary caregiver of a child born out of the marriage
  2. Age, physical or mental incapacity; or
  3. Any other suitable reason

How does someone apply for spousal maintenance?

In the Australian Family Law system, disputing spouses are encouraged to settle matters outside of the courtroom rather than have them arbitrated by a judge. If you are unable to come to an agreement with your spouse, you can file an application seeking orders for spousal maintenance with the Federal Circuit Court.

At this point you will be required to provide a Financial Statement that outlines your income and expenses and your spouse will do the same when they file their response.

According to Section 77 of the Family Law Act (1975), a court may consider that a spouse is in ‘urgent need’ of financial support and may order an immediate payment to be made pending the final determination of the spousal maintenance application.

How is the $ amount determined?

When a court is required to determine the amount of spousal maintenance that is payable, they will examine the financial needs of the applicant as well as the financial capacity of the respondent. The court will then make discretionary judgements about the amount that should be paid and there is no specially prescribed formula like there is when calculating child support.

The court will look at the reasonable day-to-day living expenses of the applicant and the respondent so a fair judgement can be made with regards to lifestyle impact. In cases where the applicant is also the primary caregiver for any children below school age, the court will not require that they seek employment while the children still need full time care. If the children are of school age, then applicants will be required to take steps in securing employment, although certain circumstances can change this.

According to Section 74 of the Family Law Act (1975); the court is able to make any order it considers appropriate for the provision of spousal maintenance.

What factors does the court consider in assessing a claim?

When the court assesses the suitability of a claim for spousal maintenance, they will consider the following:

  • Health and age of both spouses;
  • The financial assets of both spouses and their capacity to find adequate employment;
  • Whether either party is the primary caregiver of a child;
  • Whether either party is responsible for the support of another person;
  • Whether either party has eligibility for social security or superannuation benefits;
  • What the court considers to be a reasonable standard of living;
  • The extent to which the applicant has made contributions to the respondent’s finances;
  • The total length of the relationship and to what extent it has affected the applicant’s earning capacity;
  • The present or future extent to which either party is liable for child support payments;
  • Any other relevant circumstances (Section 76)

How much time is there to file an application?

Following the date of divorce, you have 12 months to apply for spousal maintenance. If it was a de facto relationship, the applicant has two years from the date of separation to apply.

If you fail to file an application within these time constraints, you can ask for a special ‘out of time’ permission from the court. However, this is usually not granted to you unless you can prove you had a good reason for failing to apply within the prescribed timeframe.

If you are applying for or responding to spousal maintenance, or dealing with any other family law issue, don’t hesitate to contact our expert family lawyers. We can help you navigate the legal complexities of your case and get you a favourable result.