Spousal maintenance is the amount to be paid by one party to another to ensure the receiving party can maintain a reasonable standard of living after a divorce or separation. The spousal maintenance amount is usually paid on a short-term basis before property matters are finalised.
When does a Person need to Pay Spousal Maintenance?
A former spouse or partner may be required to pay spousal maintenance to the other party if:
- The person seeking spousal maintenance does not have sufficient income to support themselves after meeting their own expenses. For example, they may be sick, unskilled to work or have a young child or baby in their care; and
- The person being asked to pay spousal has sufficient income to support the person seeking spousal maintenance after meeting their own living expenses.
When determining if spousal maintenance should be paid, the Courts will usually consider the following factors:
- The age, health, income, assets, and employment capacity of both of the parties. If the person who is seeking spousal maintenance has a serious health condition, has limited assets or funds, or is of an age or skill base where finding suitable employment is difficult, then this will support their claim for spousal maintenance;
- The reasonable living expenses of each of the parties;
- Whether the person seeking spousal maintenance can adequately support themselves;
- Whether the person being asked to pay spousal has sufficient income to afford to pay the person seeking spousal maintenance;
- Whether either of the parties have any commitments or responsibilities which are necessary to maintain themselves, any other people, or any children of the relationship;
- Whether either of the parties are eligible for an allowance or benefit, including superannuation;
- The standard of living that is reasonable for both of the parties under the circumstances;
- Whether spousal maintenance will assist the person seeking spousal maintenance to increase their earning capacity (for example, through education and/or training); and
- Any financial and non-financial contributions made by each of the parties during their relationship including homemaking, child-rearing, and career sacrifices to benefit the relationship. These factors can impact the duration and amount of spousal maintenance.
When can a Person make an Application for Spousal Maintenance?
Applications for spousal maintenance are usually made after the primary earner has withdrawn financial support and an order for spousal maintenance will normally last until the parties negotiate a division of the matrimonial property.
The following time limits also apply:
- For married couples, an application must be made within 12 months from the date of divorce; and
- For de facto couples, an application must be made within 2 years of the breakdown of the relationship.
Conclusion
A person’s entitlement to spousal maintenance is not automatic, and various factors must be considered by the Courts when determining eligibility. The overarching factor for the Courts to consider is whether both parties can maintain a reasonable standard of living post-divorce or separation.
To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.
