Spousal Maintenance

Am I entitled to Spousal Maintenance?

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In other parts of the world, they call it “alimony”.  In Australia, we call it “spousal maintenance” for married couples or “maintenance” for de facto couples.

Spousal maintenance is money paid from one spouse to another to support them financially. It can be obtained by married couples either before or after a separation, or de facto couples who have separated on a final basis.

Eligibility for spousal maintenance

Under the Family Law Act 1975 (Cth) (FLA), the court can make any order for maintenance that it considers appropriate.

To be eligible to receive spousal maintenance, the following must apply:

  1. Need (established by the spouse who is to receive payment)

To obtain maintenance, the party must be unable to support themselves adequately due to obligations to care for a child of the relationship who is under 18 years of age, their age, incapacity to obtain employment or some other relevant factor.  There are other circumstances that a court might consider as an adequate reason for a party to claim they are unable to support themselves.

  1. Capacity to pay (demonstrated by the spouse who is to make payment)

A party is only required to maintain the other party where they are “reasonably able to do so”.   This will be assessed by considering the income, property and financial resources of the party.

Each spouse will be required to list their total income and reasonable expenses to determine what deficit or surplus exists, as well as other information about their financial circumstances.  This will help the court to determine how much spousal maintenance may be payable.

How much spousal maintenance am I entitled to?

There is no set formula or calculator to find out how much spousal maintenance you are entitled to.  The amount that your ex-partner is liable to pay as maintenance will be a question for the Court to determine, once they have determined your eligibility.  It will based on the facts that are presented to the court in relation to the need of one party for maintenance and the capacity of the other to pay maintenance.

In making a determination of eligibility and quantum/type of payment, the court can consider the factors set out in the FLA.  A non-exhaustive list of those factors is:

  1. Age and state of health of the parties;
  2. Income, property and financial resources of the parties;
  3. Ability for each of the parties to obtain appropriate employment;
  4. Any duty of each of the parties to support a child or other person;
  5. Eligibility for allowances or benefits from the State or Commonwealth or their superannuation fund; and
  6.  The length of the marriage and the extent to which that has affected one person’s earning capacity.

Spousal maintenance payments can be made in many different forms, such as periodic payments (for example weekly or monthly payments), lump sum payments or a transfer of specific property.

How do I go about seeking spousal maintenance?

Parties to a marriage or de facto relationship which has broken down can agree to one party paying the other maintenance payments.  If no agreement can be reached, one party can apply to the court for an order for spousal maintenance.  The application can seek spousal maintenance payments only or at the same time make an application for property orders with the Court for a property settlement.  Urgent applications for maintenance are also possible.

How long do I pay spousal support?

If you are the payor of maintenance, you may be questioning how long you might have to pay it for.  Spousal maintenance orders can be made when there is income earning disparity between the parties and required to be paid for a certain period, for example to allow one party to re-establish themselves in the workforce so that they can support themselves into the future.  Therefore, the length of time that you may be required to pay will be dependent upon your spouse’s individual circumstances and their future needs.

Time limits

It is important to note that there are time limits which apply to applications to the court for spousal maintenance and maintenance orders.

For a married couple, parties have 12 months from the date of a divorce order coming into effect to make an application for spousal maintenance.  For a de facto couple, parties have 2 years from the date of separation to make an application to the Court for maintenance orders.

In limited circumstances, a Court may grant leave to proceed outside of these time limits in certain circumstances but this is not guaranteed and court proceedings would be required.

Finding out more about spousal maintenance

At Daykin Family Law, we can advise you on all aspects of spousal maintenance and maintenance.  Contact our office today for a fixed fee initial consultation with our Director and Accredited Family Law Specialist, Shannon Daykin, to discuss your specific circumstances and potential entitlements or liabilities.

prenuptial and binding financial agreement difference

Prenuptial and Binding Financial Agreements – Is There A Difference?

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At Daykin Family Law, we are often contacted by couples asking for advice on the preparation of a prenuptial agreement or ‘prenup’.  Prenup is a popular terminology, but actually refers to agreements taken prior to marriage in the USA and other countries.  The equivalent of a prenup in Australia is known as a Binding Financial Agreement.

What is a Prenuptial Agreement?

A prenup, or Binding Financial Agreement as it is referred to in Australia, allows married couples (post-nuptial), soon to be married couples (pre-nuptial) and parties in a defacto or same sex relationship, to enter into a legal agreement about their financial affairs in the case of a relationship breakdown.

Binding Financial Agreements were introduced in Australia in 2000 to provide a mechanism for couples who are either contemplating marriage, or are already married to organise their affairs, including what could happen to property, business or how they would be looked after financially following a separation.

Should I get a prenup?

Prenups, or Binding Financial Agreements, are designed to remove uncertainty and avoid the stress of going to court.  When done correctly, they can be a very useful tool for financial planning.  It is, however, very important to take your time, and use an experienced lawyer to demonstrate that each party has had the opportunity to negotiate and reach a fair decision on the agreement.  Agreements done in haste have been known to be challenged by the court.

In a recent case known as Thorne v Kennedy, the High Court overturned a prenup between a young woman and her property developer husband after she was made to sign the agreement the night before her wedding.  The judges ruled that the document was effectively signed under duress.  Therefore, it’s important that a pre-nuptial agreement is agreed upon by both parties over an adequate period of time.  Other circumstances where the court can overturn an agreement is where the agreement would put unnecessary hardship on the spouse, especially where there are children involved.

In sum, pre-nuptial agreements have many benefits when entered into with the right legal advice from a family lawyer.  They can protect your property and estate plan, reduce conflicts, clarify special agreements and establish ground rules for future matters.  If you’re considering a BFA and would like some advice on whether it’s right for you, contact us today.