Australia: Spousal maintenance - upon marriage separation

Last Updated: 5 March 2014
Article by Alison Brooks

Often when couples separate, the father ends up working full-time while the mother looks after the children, working part-time or not at all. He may have access to regular earnings, while she struggles to make ends meet. She may also bear the burden of substantial living costs for the children. How can she get help?

"Spousal maintenance" is the financial support paid by one party to a marriage to the other where the other is unable adequately to support him or herself. De facto partners may also seek spousal maintenance.

The primary purpose of spousal maintenance is to level the playing field between the incomes or earning capacities of spouses and is based on their respective needs. It is usually ordered for a relatively short period after separation (around two to three years) to enable the recipient to re-train, find work or generally re-establish themselves. It may be paid in a lump sum.

It is the fact of the relationship which gives rise to the obligation to pay maintenance and the obligation applies to the parties equally.

Claiming Spousal Maintenance

A spouse may obtain maintenance either by agreement or court order. Often a party will seek it as part of a property settlement application but it can be obtained by itself.

Married couples and de facto partners may both claim maintenance. The only difference is that applications for spousal maintenance need to be made within 12 months of divorce under the Family Law Act 1975 (FLA), whereas applications for maintenance should be made within 2 years of the separation under the Family Court Act 1997 (FCA). In both cases, application can be made out of time with the permission of the court.

Right of a Spouse to Maintenance - Section 72 FLA:

  1. (1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
    1. by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
    2. by reason of age or physical or mental incapacity for appropriate gainful employment; or
    3. for any other adequate reason;

    having regard to any relevant matter referred to in subsection 75(2).

The aim is to balance the needs of the applicant against the respondent's ability to pay.

First threshold step: Applicant must establish financial need

An applicant must first show that they are unable to adequately support their own needs from their own resources or earning capacity, where "adequate" means a standard of living that is reasonable in all the circumstances (not just meeting their bare needs).

Their previous standard of living is one factor. Where the husband has ample resources and the parties previously enjoyed a high standard of living, it may be considered unreasonable to expect the wife to seek unskilled or low paid employment, especially where the marriage was long and the wife lacks recent work experience.

The applicant must prove an inability to be self-supporting otherwise an order for maintenance will not be made. The court will examine all of the applicant's assets, income and expenditure to assess whether their reasonable needs and expenditure exceed the income available to them. They do not need to have used up all of their assets and capital (including any awarded under a property settlement) to satisfy this requirement.

A person relying on social security payments or donations from their former spouse, friends or relatives is clearly not able to support themselves adequately: In the Marriage of Murkin (1980) 5 Fam LR 782.

Second threshold step: Applicant must establish Respondent able to pay

Once the needs test is satisfied, the next step is to assess the means and reasonable needs of the respondent and his or her ability to contribute to the support of the applicant.

Ability to pay is measured not only by that person's current income and may involve a much wider assessment of their assets, resources, overall financial position and earning capacity. If the respondent simply cannot pay, the application will fail and there will be no further inquiry.

However, if they are able contribute, further inquiry will establish the extent to which they should do so. The fact that a party already pays child support will not prevent a claim for spousal maintenance but will be factored in when considering the respondent's liability.

If a respondent deliberately leaves their job to avoid making payment, or voluntarily reduces their income, this can be taken into account in deciding whether they are reasonably able to provide maintenance.

Once over the threshold, an applicant must satisfy one of the following criteria:

  1. Having the care and control of a child of the marriage who has not attained the age of 18 years

If there are children of the relationship, a claim for spousal maintenance will take into account the number of children, their ages, and any special needs of a particular child. The availability of suitable child-minding facilities will also be relevant. [The term "child of the marriage" refers to a child of the parties, or adopted by them, and includes any children born by artificial conception].

  1. Age or physical or mental incapacity re appropriate gainful employment

Where they are the primary carers of dependant children, women often leave paid employment, reduce their vocational experience, miss opportunities for promotion and their income suffers accordingly.

The applicant must provide evidence of attempts to find employment, the likelihood of finding it, and whether any available income would be enough to support them. The court will also consider failing health, advancing age, sustained lack of employment, or lack of qualifications as factors influencing the ability to secure a job.

  1. Any other adequate reason with reference to s 75(2) factors

The section 75(2) factors are considered as part of the threshold assessment for an entitlement to spousal maintenance. An applicant could provide evidence of, for example, their state of health, their property and financial resources, or the fact that payment of maintenance would allow them to undertake further studies which would increase their earning capacity.

The court will decide whether the reason provided is sufficient evidence of the applicant being unable to support themselves.

Next Steps

Once it has decided that a party is entitled to maintenance, the court will consider the amount, manner and duration of the payments. The section 75(2) factors will again be relevant, as well as the information each party has provided about their income and expenses. The court is required to set out each of the section 75(2) factors relied upon in reaching its decision.


Whether spousal maintenance will be payable will depend in each case on the particular circumstances. The court has a wide discretion exercised to achieve a result that is fair and equitable in all the circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Alison Brooks
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