Following the breakdown of a marriage or de facto relationship, one party can often find themselves in a significantly weaker financial position than their former spouse. This can come about as a result of a variety of factors. One common scenario involves one party essentially giving up career advancement to care for the parties' children. As a result the party who continued to work throughout this period will have a higher income earning capacity than their partner - who may not have worked or only worked on a part time basis over a period of several years.
In these circumstances a former partner may have to provide ongoing support to the financially weaker party to cover any shortfall between their reasonable living expenses and their available income. This financial support is called "spousal maintenance".
The two key criteria the Family Court will assess when deciding if an order for spousal maintenance is warranted are:
- Whether the person seeking spousal maintenance is able to demonstrate they cannot adequately meet their reasonable needs from their own finances (i.e. there is a need for spousal maintenance); and
- Whether the other party has the capacity to actually pay.
Spousal maintenance is often paid periodically, often for a relatively short fixed term (e.g. weekly for a period of 2 years). However it can also be paid as a lump sum or through a right to use property such as a house or car.
The purpose of spousal maintenance is not to have one party supporting the other financially ad infinitum following separation. It is meant to ensure the financially weaker party maintains a reasonable standard of living until such a time as they are able to support themselves independently.
In the rare circumstance where it is appropriate for spousal maintenance is to be paid over a longer period the Court may order that payments cease upon the occurrence of a specific event. For example it may cease at the time that the person receiving maintenance completes training or re-skilling, secures employment or commences a new relationship.
It is important to remember that spousal maintenance is not the same thing as child support and serves a different purpose. Child support is paid for the benefit and care of the parties' children and is a separate payment. The Family Court can order a party to pay spousal maintenance in addition to any child support they may be obligated to pay.
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.
