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
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:
The ages of the parties;
The health of the parties;
The ability of each party to work;
What constitutes a suitable standard of living;
The effect of the marriage on a party's ability to earn
In some cases, if one party is caring for adult or disabled
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.
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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Divorcing or separating from your spouse can have a substantial impact on your business, partners or other shareholders.
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