Spousal maintenance is a form of financial support that one partner may need to pay the other when a marriage or de facto relationship ends. Under the Family Law Act, the aim of spousal maintenance is to ensure that both parties can maintain a reasonable standard of living following separation and until a final property settlement and sometimes beyond that time.
Spousal maintenance is paid by one party to another to ensure the receiving party can maintain a reasonable standard of living after a separation. The spousal maintenance amount is usually paid on a short-term basis before property matters are finalised but can be extended beyond in special circumstances.
This article explains when spousal maintenance payments are payable, how the court makes decisions about eligibility and duration, and the steps to take if you wish to apply or are responding to a request.
When can the family court award spousal maintenance?
The Federal Circuit and Family Court of Australia may award spousal maintenance if:
- A married spouse or de facto partner is unable to support herself or himself; and
- The other party is reasonably able to do so because of the income they earn or are capable of earning.
The Court will also be required to consider the following factors:
What factors are considered when the court assesses a spousal maintenance application?
When considering whether to make a spousal maintenance order, the Courts will look closely at a range of financial and personal factors, including:
- The age and state of health of each party;
- The income, property and financial resources of each of the parties;
- The physical and mental capacity of each party for appropriate gainful employment;
- Whether either party has the care and control of a child of the marriage who has not attained the age of 18 years;
- The commitments of each party that are necessary to enable them to support:
(i) themselves; and
(ii) a child or other person that they have a duty to maintain; - The responsibilities of either party to support any other person;
- The eligibility of either party to a pension, allowance or benefit, including from a superannuation fund;
- Where the parties have separated, a standard of living that, in all the circumstance,s is reasonable;
- The duration of the marriage and the extent to which it has affected the earning capacity of each party;
- The need to protect a party who wishes to continue the role as parent;
- If either party is cohabitating with another person, the financial circumstances relating to the cohabitation; and
- Any fact or circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account.
When would 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 maintenance has sufficient income to support the person seeking spousal maintenance after meeting their own living expenses.
Lump sum or regular payments
Maintenance orders may require either regular payments (weekly, fortnightly, or monthly) or a lump sum payment. The family court decides which option is appropriate, depending on the circumstances.
- Regular monthly or weekly payments are more common, particularly if the recipient needs ongoing financial assistance for living expenses.
- A lump sum may be awarded on a final basis when there are sufficient assets or as part of a broader property settlement or immediately after separation.
Urgent spousal maintenance can also be ordered on an interim basis if the applicant is in immediate need and cannot wait for the final hearing, however, often it is not practicable to determine immediately what Order should be made, pending a full investigation of both parties’ financial circumstances.
How long do spousal maintenance payments last?
The duration of spousal maintenance payable depends on the situation. In many cases, the family court expects the recipient to become self‑sufficient through gainful employment.
Maintenance payments may be made for a limited time, for example, while the former spouse retrain or seeks work. In rare cases, a court may make an order for spousal maintenance on a final basis, continuing indefinitely until circumstances change (e.g. the recipient remarries or enters a new de facto relationship).
Time limits for applying
Strict time limits apply to applications for spousal maintenance:
- For married couples, you must apply within 12 months of a Divorce Order becoming final.
- For de facto couples, you must apply within two years of separation..
In Western Australia, applications for de facto maintenance are made in the Family Court of Western Australia.
If the deadline has passed, you may need to seek special permission from the court.
Can spousal maintenance be changed or ended?
Yes. Either party may apply to vary or discharge spousal maintenance arrangements if their circumstances change. For example:
- The recipient starts a new de facto relationship or remarries
- The recipient’s financial resources or earning capacity improve
- The payer’s financial situation worsens, or they experience mental incapacity
How does spousal maintenance relate to child support and property settlement?
Spousal maintenance is separate from child support and child maintenance, which are designed to meet the child’s reasonable needs. It is also separate from property settlement, although the legal industry often considers the two together because the parties’ property and financial resources overlap. Parties can finalise their property settlement and spousal maintenance simultaneously using a Binding Financial Agreement or maintenance orders approved by the family court.
How to apply for spousal maintenance
If you believe you may be eligible to receive spousal maintenance, the general steps are:
- Seek legal advice
Speak with an experienced Family Lawyer who can explain your rights and obligations. Many offer a free initial consultation to help you understand the process and your options. - Attempt to resolve
Try to reach an agreement with your former husband, former partner or de facto partner through negotiation or Family Dispute Resolution before going to court. - File an application
If no agreement can be reached, your lawyer can assist you in filing an application for spousal maintenance in the Federal Circuit and Family Court of Australia. - Provide evidence
You will need to show details of your family income, property and financial resources, reasonable expenses and any physical or mental incapacity affecting your ability to work.
The court will then decide whether spousal maintenance is appropriate and, if so, what amount of spousal maintenance payable is necessary to meet the applicant’s reasonable needs.
Often, as part of a property settlement, parties enter into a Finding Financial Agreement to waive their rights to make a claim for maintenance in the future. This ensures neither party can later make a claim.
Do you need a Family Lawyer?
Spousal maintenance arrangements can be complex. The legal system requires strict compliance with time limits and procedural rules, and the other party may dispute the application.
A Family Lawyer will:
- Help you understand your legal rights and obligations and whether you qualify for spousal maintenance.
- Advise on maintenance orders and binding financial agreements.
- Prepare and lodge your application for spousal maintenance.
- Help you to respond to a spousal maintenance application.
- Represent you in negotiations or the family court.
While it is possible to manage a spousal maintenance application on your own, it’s not recommended. The process can be complicated, and having a Family Lawyer ensures your rights are protected and your application is handled correctly from the start. If you make mistakes, there could be a costs Order against you as a consequence.
Final thoughts
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.
Spousal maintenance in Australia provides financial support when one partner cannot support themselves and the other party has the capacity to pay. It is separate from child support and property settlement and can take the form of lump-sum payments or regular payments. Understanding your rights, how the court assesses spousal maintenance, and when payments may be ordered can help you approach this area of family law with clarity.
If you need assistance applying for spousal maintenance, responding to a claim, or protecting your financial interests, the team at Pearsons Lawyers is here to ensure you know where you stand.
