Spousal Maintenance is 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
Under the Family Law Act, a person has a responsibility to
financially assist their spouse or former de facto partner, if that
person cannot meet their own reasonable expenses from their
personal income or assets.
Where the need exists, both parties have an equal duty to
support and maintain each other as far as they can. This obligation
can continue even after separation and divorce. The extent of the
support depends on what the other party can afford to pay.
WHEN CAN I APPLY FOR SPOUSAL MAINTENANCE?
Parties can apply for spousal maintenance, at any time after
separation, even in circumstances where they are living separately
under the one roof.
HOW IS SPOUSAL MAINTENANCE CALCULATED?
Maintenance is not automatic. The Court looks at two key matters
when determining a spousal maintenance application, those are:
Does the Applicant have a need (i.e. do they have the ability
to meet their own reasonable financial needs ?); and
Can the Respondent afford 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. In deciding a
maintenance application, the Court will consider the following, in
relation to both parties:
age and health;
income, property, and financial resources;
ability to work;
what is a suitable standard of living; and
if the marriage has affected a party's ability to earn an
In some cases, the Court will also consider whether one party
is caring for adult or disabled child/ren.
HOW LONG IS SPOUSAL MAINTENANCE PAYABLE?
Spousal 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.
There is no firm and fast rule for how long spousal maintenance
will be payable because each matter is determined on its own
merits, however, 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 spousal 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
WHAT IF WE WEREN'T MARRIED?
Parties to de facto relationships cannot make an application for
spousal maintenance. However, in certain circumstances one party
may be able to apply for de facto partner financial support from
their former de facto partner in circumstances where they cannot
adequately support themselves.
IS THERE A LIMIT TO APPLY FOR SPOUSAL MAINTENANCE/DE FACTO
PARTNER FINANCIAL SUPPORT?
If you are or were married you must apply for spousal
maintenance within 12 months of your divorce becoming final.
If you were in a de facto relationship you must apply for de
facto partner maintenance within 2 years of the breakdown of your
de facto relationship.
If you do not apply within these time limits, you will need
special permission from the Court to proceed out of time. This is
not always granted.
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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