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Am I Entitled to Spousal Maintenance?

By 21 October 2020Family Law
Spousal Maintenance

When a married or de-facto couple separates, there are many difficult issues to work out before they can move on with their respective lives.

In situations where one partner was the sole or primary breadwinner, a separation may put the other partner into a precarious financial position. They may have been out of the work force for many years to raise children, maintain the home, or for other reasons. Getting back into work after the relationship ends is not always easy.

In these cases one partner may apply for spousal maintenance from their former partner pursuant to section 72 (for marriage) or section 90SF (for de facto couples) of the Family Law Act 1975 (Cth).  Spousal maintenance should be distinguished from child maintenance payments, which are assessed differently.

In general, spousal maintenance will only be paid where one partner has a financial need after separation or divorce and the other partner has the capacity to provide financial support.

While many agreements about paying spousal maintenance are decided as part of a broader property and financial settlement once a couple split up, either privately between the parties or through a negotiated dispute resolution process, in some cases it will be necessary to apply to the court for financial orders.

Whichever course is taken, the advice of expert family law legal processionals should be sought in order to protect your interests.

The factors taken into account in deciding whether spousal maintenance should be paid by a person to their former partner are discussed below.

How is spousal maintenance decided?

One partner may have to pay spousal maintenance to their former partner if the person seeking payment is unable to support themselves due to the care of a child from the relationship who is under 18 years of age; because they are unable to gain employment due to age, physical or mental incapacity; or for any other adequate reason.

If you are unable to reach an agreement with your former partner about maintenance through family dispute resolution, you may need to apply to the court to make a financial order where you will be required to show evidence of your financial needs as well as your former partner’s capacity to pay it.

When making an application, the person applying for spousal maintenance must demonstrate that they and their former partner had been in a de-facto relationship for at least two years or are married.  If this criteria is not met, the Court will also need to be satisfied that there is a child of the relationship and/or that the applicant has made a substantial contribution to the relationship and that a failure to make a financial order would result in a serious injustice.

The court has a duty to make orders which are just and equitable, which as far as practicable ends the financial interaction between the parties, and which prevents any further legal disputes between them.

A number of factors will be taken into account by the court in deciding whether spousal maintenance should be paid, regardless of whether the parties were married or de facto. These include:

  • the age and health of each party;
  • each party’s income, property and financial resources, as well as their physical and mental capacity to undertake appropriate paid employment;
  • whether there is a child or children under 18 years of age from the relationship which one party has care or control of;
  • each party’s financial needs and obligations so far as they are required to support themselves and any legal dependants;
  • whether either party has responsibility for supporting any other person (an elderly parent, for example);
  • whether either party is eligible for a pension, allowance or benefit under any Federal or state law, or through a superannuation fund, as well as the rate of any such benefit;
  • what standard of living is considered reasonable for the parties, given the circumstances following the split;
  • whether payment of maintenance to one party would increase their capacity to make a living by undertaking education or starting a business, for example;
  • whether the party seeking maintenance has contributed to the other party’s ability to earn income and their property and financial resources during the relationship;
  • the duration of the marriage and whether the relationship affected the earning capacity of the party seeking maintenance;
  • the role of maintenance in allowing one party to continue parenting of a child or children from the relationship;
  • either party’s current living arrangements, including whether they are living with another person and whether that situation has affected their financial circumstances;
  • whether there is a court order that has been made or proposed to be made regarding a property settlement between the parties;
  • whether child support is payable by one party to the other under the Child Support (Assessment) Act 1989 (Cth);
  • any other fact or circumstance that should be taken into account to ensure fairness and justice.

After the assessment of these factors the court can order one party to:

  • pay a lump sum amount;
  • pay weekly, monthly or yearly amounts of maintenance;
  • transfer property or assets to one party as a spousal maintenance payment;
  • observe a permanent, fixed period order or order for the life of one of the parties.

The court can also order that spousal maintenance be secured, meaning that if the party asked to make payment does not comply, the security can be sold in order that the person entitled to receive spousal maintenance is paid.

Time limits

A person making an application for spousal maintenance can do so any time after the separation but as with most legal matters, there are applicable time limits.

For spousal maintenance you must apply for a court order within one year from the date the divorce is finalised, or two years from the date a de facto relationship ended.

Applications after this time are only granted in special circumstances, and should only be made after seeking legal advice.

When does spousal maintenance end?

Orders with regard to spousal maintenance are usually time-limited. Spousal maintenance payments may be extended with further application to the Court.

Seek legal advice

At Delaney & Delaney, our expert professionals advise people on family law matters such as spousal maintenance every day.

Whether you’re poised to sign a financial agreement with your former partner, or struggling to agree on how to divide property and assets after a separation, or need to apply for spousal maintenance whether in or outside the time limits, we can advise provide you with professional legal advice.

Our reputation is built on more than 100 years of service to clients so contact our friendly team today on (07) 3236 2604 or for an initial discussion about your family law matter.