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
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);
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.
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