Australia: How to successfully obtain spousal maintenance

Last Updated: 23 April 2015

By Brett Hartley

The Family Law Courts define Spousal Maintenance as:

'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.

De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.'

A recent case in the Family Court has highlighted the fact that if one does not prepare their case for spousal maintenance carefully then they are at risk of the application being dismissed. A woman in this case applied for spousal maintenance of $1,000.00 per week. She had not worked much during the marriage (only about 1 day a week) and there were periods after separation where she didn't work at all for lengthy periods of time. She had been suffering from quite severe depression since separation and had been relying upon family and friends for financial support.

At first instance, her Application for spousal maintenance was dismissed. On appeal, leave to appeal was granted and the matter sent back for rehearing before a Judge.

In this case, the woman clearly had a right to obtain spousal maintenance but the poor presentation of evidence and arguments advanced by her legal representatives resulted in her case not being successful initially.

It is important to remember that there is no right of spousal maintenance upon separation. Whether you have been in a marriage or a de facto relationship you should obtain specific legal advice about whether you do have a right for spousal maintenance immediately after separation.

In summary, you will have a right to obtain spousal maintenance if you can show that you are unable to adequately support yourself and secondly you would need to also be able to show that your ex-spouse or your ex-partner has the financial capacity to contribute to your support after they have met all their own reasonable living expenses.

The first limb of this test is therefore to show that you cannot adequately support yourself in the short term. A good family lawyer will obtain and present to the Court the following evidence on your behalf:-

  1. A detailed history of any work that you performed during the marriage and what income your earned;
  2. Details about how and when you may have given up work to support the family and the effect this has had on your income earning capacity;
  3. Evidence about what has occurred since separation and in particular, whether your health and/or arrangements for the care of the children have meant that you have been unable to obtain adequate employment;
  4. Evidence as to what jobs (if any) may be available in the short or immediate term for you;
  5. Obtain expert evidence about your health issues and what impact they directly have upon your immediate ability to obtain employment.

It is not easy to re-enter the workforce nowadays after a long absence. In many cases, retraining will be required and further education undertaken at considerable costs. Evidence about this retraining and courses should also be presented to the Court.

However, one must always gather and present evidence on your behalf to prove your case in a detailed and particular fashion. All too often, we see other lawyers simply assume that because their client has not worked for a period of time that they will automatically obtain an Order for spousal maintenance. That is not always the case.

In relation to the second limb of the maintenance tests, it is important to show how your ex-spouse or partner can afford to make a contribution to your maintenance after meeting all of their reasonable living expenses.

In putting together your evidence for any spousal maintenance case it is important to distinguish between the actual expenditure that you currently have as compared to what would be your "reasonable needs".

In other words, immediately after separation you may have limited funds and thus your spending is curtailed substantially. That does not mean that your maintenance would be based on what you're getting by on in those circumstances.

The Court will want to know what your reasonable expenses would be so as to have an adequate standard of living. It is important that you put detailed schedules supported by evidence as to each of those needs and why they are reasonable. In some cases it will be important to examine your ex-spouse or ex-partner's expenses to see how they compare to your proposed reasonable needs. In many cases they may be substantially higher.

Making an Application for spousal maintenance to Court can be an extremely expensive exercise and therefore a good lawyer will undertake a commercial analysis for you as to the pros and cons of filing that Application based on your prospects of success. One should never dive into Court spending tens of thousands of dollars if one were only to obtain an Order for a few hundred dollars a week. A good family lawyer will be able to advise you about not only your prospects of success but the commercial worth of making such an Application.

Also, a good family lawyer will attempt to first negotiate and try to reach an agreement with the other side to secure you some payments (periodic of otherwise) in the interim to assist with your support immediately after separation.

Litigation should always be a last resort but in some cases to obtain spousal maintenance it is an essential and unavoidable course of action. If it is necessary to make such an Application then ensure that your lawyer prepares your case in a detailed and precise fashion to maximise your chances of success in any hearing before the Court.

At Hartley Healy we have a substantial team of family lawyers who practice exclusively in family law, including 5 Accredited Family Law Specialists. We are able to successfully negotiate and/or pursue Applications for spousal maintenance on your behalf, should it be necessary.

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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