Calculating spousal maintenance

Understanding your obligation to pay or right to receive spousal support

It is not uncommon for couples to mutually support each other financially over the course of a de facto relationship or marriage. What you may not realise is that ex-partners may also be entitled to ongoing spousal support, with others obligated to give such support. Read on to discover the basics of spousal maintenance, how you calculate payments and how it differs from other family law financial agreements.

Spousal maintenance, spousal support and alimony payments (as they call it in the USA)

Spousal maintenance is a payment given from one spouse to another as a means of providing financial support. It may be a periodic or a lump sum payment, as some examples. Spousal maintenance (for married parties) or maintenance (for former de facto couples) is usually paid due to a range of factors, such as care of children of the relationship under 18 years, an illness or other health condition or other relevant factors.

This support can be ordered by the Court if it is not agreed, with varying lengths of time for such payments to be made in the case of periodic spousal maintenance/maintenance.

Spousal maintenance can often be confused with alimony, an American term not used within the Australian legal jurisdiction. However, this is essentially equivalent to spousal maintenance, maintenance or spousal support, as some call it.

Calculating spousal maintenance

While there are many services online that will claim to calculate how much you may be entitled to, in truth, there are a number of factors involved making it difficult for any online service to be able to come to an accurate conclusion.

However, the starting point is looking at a party’s need. This can be done in reference to a party’s income less their reasonable living expenses. The second step then is to assess the other party’s capacity to pay spousal maintenance, taking into account their income and reasonable living expenses among other things, and ascertaining whether there is a surplus.

Applying for spousal maintenance

A party seeking to receive an order for spousal maintenance must apply within 12 months of a divorce order taking effect, or within 24 months of the end of a de facto relationship.  Applications can be made to the Court outside of these time limits, but it can be a costly process seeking the Court’s permission to proceed out of time, and success is not guaranteed.

Spousal maintenance is not an automatic part of the separation or divorce process. If an agreement cannot be reached, the party that is requesting assistance must submit an application and then establish that they have a need for spousal maintenance.

Some of the factors that are considered by the courts, briefly referred to earlier, are:

  • The care of children under the age of 18 years – the parent/caregiver may be entitled to additional support for the spouse themselves
  • Any existing financial support agreement between parties which extends beyond the relationship’s termination
  • Age and health – if one party is significantly older than the other or has a medical condition
  • A party’s inability to obtain employment and/or access to reasonable living standards
  • A party’s access to other financial support, such as the pension or other government benefits
  • The income, additional property, and financial resources of the two parties – is one party significantly advantaged over the other?
  • The factors relevant to the relationship

 While there is no limit to what the courts may consider in terms of a spousal maintenance application, Australia is a ‘no-fault’ jurisdiction. As such, the Courts will not factor in who ended the relationship and why.

The Court’s involvement

A Court can make orders that a party must pay spousal maintenance to the other party, with the Court most frequently ordering periodic or lump sum payments. Spousal maintenance orders can also include the transfer of property.

On a successful application, the Court will also stipulate any relevant terms and conditions, including how long the payments will last, particularly when made as part of final orders.

Other forms of support/payments

Spousal maintenance is different and separate to other forms of financial support or agreements, such as child support or property settlement. Child support payments are made in support of the child/children. Property settlement payments can be made as part of dividing assets as part of an overall property settlement following the breakdown of a marriage or de facto relationship.

Daykin Family Law can guide you through the process of applying for or contesting an application for spousal maintenance. Contact us today for an overview of your options and how we can help you reach a positive solution.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.

De Facto Couple Moving House

What does a de facto relationship mean in legal terms?

Common misconceptions about de facto relationships and the things you should be aware of before entering a committed relationship

There are many misconceptions surrounding de facto relationships and a large portion of individuals and couples are not aware of the relevant legal implications and obligations. After handling countless de facto cases in which parties were simply unaware of the legal realities, we’ve summarised what a de facto relationship means in legal terms, and how that legal status will come into play during a relationship breakdown.

Common misconceptions

Most people believe that family law applies only to legally married partnerships when in reality de facto couples face almost identical legal rights and responsibilities as their married counterparts.  In the case of property settlement, agreements regarding property matters arising from the breakdown of a de facto relationship can be negotiated and recorded.  Separated de facto parties can also make an application to the Family Law Courts for property adjustment orders after a de facto relationship has ended.

The legal definition

Legally, a de facto relationship exists when 1) you are not legally married, 2) you are not related and 3) there is a relationship where you are living together on what is considered a ‘genuine domestic basis’. The genuineness of your domestic relationship is determined by reference to numerous factors, including:

  the relationship duration

  whether you lived together

  whether the relationship was sexual in nature

  the degree in which finances were shared

  ownership of any shared property

  the existence of a mutual commitment

  the shared care and support of children.

A court will consider the individual and unique circumstances of a relationship in coming to a finding, and your relationship may be found to be de facto even if you don’t meet all of the above-listed criteria. For example, while living arrangements are a major factor in determining a relationship status, there have been instances in which couples who lived apart, perhaps due to work commitments, were still found to be in a de facto relationship.  There have also been other cases where a de facto relationship was found by the court to exist whilst a person was married to another person.

Maintenance

Separated de facto parties can also seek, and be liable for, maintenance orders if a party is in need of maintenance and the other party has the capacity to meet such obligations.  With married couples, this is referred to as ‘spousal maintenance’.  The concept of spousal maintenance will be covered in-depth within our June blog post (keep an eye out!).

When children are involved

All children are protected under the Family Law Act, regardless of the nature of their parent’s relationship. The Act outlines parental responsibilities and applies to children of a marital or de facto relationship.

Other things to note

The de facto status of a same-sex relationship is defined using the same legal criteria as that of heterosexual couples. Same-sex couples defined by the court as de facto are provided with the same legal rights and have the same legal rights and obligations as same-sex de facto couples.

As mentioned above, an individual can be in several de facto relationships simultaneously and a married individual can be found to also be within a de facto relationship with someone other than their marital spouse.

Protecting yourself before or during a de facto relationship

Many know about ‘prenup’ agreements and how they can protect people entering a marriage. 

Those entering a de facto relationship can also enter into similar agreements regarding how property will be dealt with, among other things, after the breakdown of a de facto relationship.  Other such agreements can be made during a de facto relationship, and can be used after a de facto relationship has ended to record a property settlement and deal with maintenance.  These agreements are known as Binding Financial Agreements.

Need help navigating the breakdown of a de facto relationship? Shannon Daykin, director of Daykin Family Law, can assist in achieving a positive and quick solution. Contact Shannon today.


We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.