Spousal Maintenance Lawyers Melbourne

Spousal maintenance is financial support that one former partner pays the other after a marriage or de facto relationship ends. Under the Family Law Act 1975 (Cth), a person must support their spouse or former de facto partner, to the extent they are reasonably able to, if that person cannot adequately support themselves. This may be because they care for a child under 18, because their age or health limits their ability to work, or for another adequate reason (sections 72 and 90SF). Maintenance is often paid until a final property settlement, and sometimes beyond that time.

If you have been in a marriage or de facto relationship, you may be eligible for spousal maintenance if you cannot adequately support yourself when the relationship ends and the other party is reasonably able to support you. Spousal maintenance is not automatic. The court looks at your needs, the other party’s capacity to pay and the factors set out in the Family Law Act, including what standard of living is reasonable in all the circumstances. It may order payments for a short period, a longer period or as a lump sum.

Yes. There are strict time limits for applying to the court for spousal maintenance:

• If you were married, you can apply before you divorce. Once a divorce order takes effect, you must apply within 12 months.
• If you were in a de facto relationship, you must apply within two years of the relationship ending.

After a time limit has passed, you need the court’s permission (leave) to apply, which is only given in limited circumstances. Get advice early if a time limit is close or has passed.

There is no fixed amount or duration set out for spousal maintenance in Australia. It may be paid only on a short-term or interim basis, or for years to come. The court considers the receiving party’s financial needs, the other party’s capacity to pay and all relevant circumstances. Orders may provide support for a set period or longer, depending on the circumstances. This may be while property settlement is finalised, or while a stay-at-home parent raises young children. 

Spousal maintenance is separate from child support, which is assessed by Services Australia under the Child Support (Assessment) Act 1989 to help with the cost of raising children. It is also separate from property settlement, although they are often considered at the same time as each other after divorce or separation as the parties’ property and financial resources overlap.

Spousal maintenance may be paid on an urgent or temporary basis to allow one party to afford legal fees during property settlement, or to meet living expenses in early separation. It may also be paid while property settlement proceedings are resolved, or as a lump sum during property settlement.

Parties can finalise their property settlement and spousal maintenance simultaneously using a Binding Financial Agreement, or through consent orders made by the Federal Circuit and Family Court of Australia.

Under the Family Law Act 1975 (Cth), the court considers the factors in section 75(2) for married couples and section 90SF for eligible de facto couples when deciding whether to make a spousal maintenance order. The court considers the needs of an applicant and the respondent’s capacity to pay, as well as: 

• The effect of any family violence.
• Each party’s age, health, income, assets and earning capacity.
• Care of a child under 18 (or an adult child with a disability), including the need to provide appropriate housing for the child.
• Each party’s reasonable living expenses and financial commitments.
• Responsibilities to support children or other dependants.
• Eligibility for a pension, allowance or benefit, including superannuation (the court does not count the applicant’s entitlement to an income-tested government payment).
• A reasonable standard of living after separation.
• Whether maintenance could help a party improve their earning capacity through education, training or employment.
• The effect of an order on creditors’ ability to recover debts.
• Each party’s contributions to the other’s finances and earning capacity.
• The length of the marriage and its effect on earning capacity.
• The need to protect a party who wishes to continue their parenting role.
• If either party lives with a new partner, the financial side of that relationship.
• Any property settlement orders, child support and binding financial agreements.
• Any other factors that may be relevant.

A former de facto partner may be eligible if they cannot adequately support themselves and the other partner is reasonably able to pay. Under section 90SB of the Family Law Act 1975 (Cth), the court can only make an order if at least one of these applies:

• The relationship lasted at least two years in total.
• There is a child of the relationship.
• The person applying made substantial contributions, and not making an order would result in serious injustice.
• The relationship was registered under a state or territory law.

There are also residence requirements under section 90SD, and you must apply within two years of the relationship ending.

The court compares each party’s financial circumstances, including:

• Need: Whether the applicant can adequately support themselves, considering their income, assets, reasonable living expenses, health and care responsibilities.
• Capacity to pay: Whether the other party can afford to provide maintenance after accounting for their income, financial resources, reasonable expenses and other support obligations.

The court considers the evidence and all relevant circumstances before deciding whether maintenance is payable and, if so, the amount and duration.

If the person receiving spousal maintenance marries someone else, the maintenance order ends, unless the court orders otherwise in special circumstances (sections 82 and 90SJ of the Family Law Act). A new de facto relationship does not end an order automatically, but the court can take the financial side of the new relationship into account when deciding whether the person can support themselves, and either party can apply to change the order. A new relationship of the paying party may also be relevant if it changes their capacity to pay. An order also ends if either party dies.

Reaching an agreement out-of-court is almost always preferable to matters being decided by the Courts. If both parties agree, they can formalise spousal maintenance through consent orders or a binding financial agreement, subject to the relevant legal requirements. Family dispute resolution (mediation) can help you reach an agreement. If you cannot agree, either party can apply to the Federal Circuit and Family Court of Australia for a decision.

Lump sum maintenance involves a single payment or payments by instalments, while periodic maintenance involves regular payments, such as weekly or monthly support. The appropriate arrangement depends on the parties’ financial circumstances and the terms of any agreement or order.

Interim maintenance provides financial support while negotiations or court proceedings are underway. Urgent maintenance can be ordered when a party is in immediate need of financial assistance and the court cannot yet decide the full application. The court can order the payments it considers reasonable until the case is decided (sections 77 and 90SG of the Family Law Act). It considers the circumstances and the available evidence when deciding whether to make either type of order.