Spousal maintenance is generally financial support that one spouse may be required to pay to the other after separation or divorce. Under The Family Law Act 1975, spousal maintenance exists to assist a party who cannot adequately support themselves financially.
Unlike child support, which is specifically for the care of children, spousal maintenance is designed to help an individual meet their reasonable living expenses when they do not have the means to do so independently.
Spousal maintenance applies to both married and de facto relationships. If a party can demonstrate financial need and the other has the capacity to provide support, they may be entitled to receive spousal maintenance such as periodic payments. The amount and duration of spousal maintenance are not automatic and vary based on individual circumstances, including the financial positions of both parties, health, age, and earning capacity.
Spousal maintenance can be arranged through private agreements, consent orders, or, if necessary, by making an application to the Federal Circuit and Family Court of Australia. In some cases, maintenance may only be temporary to allow a party to regain financial independence, while in other situations, it may be granted for a longer period.
Understanding your rights and obligations regarding spousal maintenance is crucial when navigating separation. If you need guidance on your eligibility or assistance in making an application, Daykin Family Law can provide expert legal advice tailored to your situation.
Who Is Eligible for Spousal Maintenance?
Key Eligibility Factors
Inability to Support Oneself
The applicant must demonstrate that they cannot meet their own reasonable living expenses due to circumstances such as:
- Having primary care of a child under 18 years old
- Age, physical, or mental health issues that impact their ability to work
- Limited work experience or qualifications preventing them from securing employment
The Other Party’s Financial Capacity
The spouse or de facto partner from whom maintenance is sought must have the financial ability to provide support. The court assesses their income, financial commitments, and overall ability to pay.
Reasonable Living Expenses
The amount ordered can be based on what is necessary to maintain a reasonable standard of living. It does not aim to provide excessive financial support but ensures that a person is not left in financial hardship following a separation.
Time Limits for Applications
- Married couples: Applications must be filed within 12 months of a divorce order becoming final.
- De facto couples: Applications must be made within two years of separation.
Sometimes, applications can be made outside of the above time limits in certain circumstances. Seeking legal advice early can help determine your rights and the best course of action for securing financial support.
How Is Spousal Maintenance Determined?
The amount and duration of spousal maintenance in Australia depend on multiple factors assessed by the court. There is no set formula; instead, each case is considered individually based on financial need and the other party’s capacity to pay.
Key Factors the Court Considers
Income and Financial Resources
The court examines both parties’ income, expenses, assets, and financial resources for example. This includes salaries, savings, investments, and any other financial resources available.
Reasonable Expenses and Living Needs
The applicant must provide evidence of their reasonable living expenses. This may include housing costs, utilities, medical expenses, and other financial commitments.
Health and Age
A person’s ability to work may be affected by age or health issues. If the applicant has a medical condition that limits their employment prospects, this may be considered when deciding on maintenance.
Work History and Earning Capacity
The court can consider whether the applicant has the skills or qualifications to gain employment. If they require further education or training, the court may order maintenance for a set period to allow for career development.
Childcare Responsibilities
If a parent is caring for a child under 18, their ability to work full-time may be limited. The court considers whether these responsibilities affect their financial independence. There may be other aspects of caring for a child that limits a person’s ability to work, such as caring for a child with high needs.
Financial Impact of the Separation
If one party is significantly worse off financially after the separation while the other remains in a stable financial position, spousal maintenance may be ordered.
How Long Does Spousal Maintenance Last?
Spousal maintenance is not generally a long-term arrangement in many cases. The court may order payments:
- For a set period, allowing the recipient time to gain financial independence for example.
- For a long period, in relatively rare cases where ongoing support is necessary due to age or disability.
- As a lump sum, rather than ongoing periodic payments.
Learn more on Calculating Spousal Maintenance.
How to Apply for Spousal Maintenance
If you believe you are entitled to spousal maintenance in Australia, you can apply through the Federal Circuit and Family Court of Australia. The process involves gathering financial information, negotiating with the other party where possible, and submitting an application if an agreement cannot be reached.
Steps to Apply for Spousal Maintenance
1. Seek Legal Advice
Before applying, it is recommended to consult with a spousal maintenance lawyer to assess eligibility, understand obligations, and explore settlement options. A lawyer can also assist in negotiations to reach an agreement without court intervention.
2. Prepare Financial Disclosure Documents
Both parties are required to provide full financial disclosure, including:
- Income details (payslips, tax returns)
- Expenses and liabilities (rent, loans, credit card statements)
- Assets and savings (property, superannuation, shares)
- Other relevant documents
3. Attempt Negotiation or Mediation
Before applying to the court, parties may try to reach an agreement through mediation or private negotiations. If successful, they can formalise the agreement with Consent Orders, making it legally binding. If no agreement is reached and a party wishes to file in Court, they generally have to give proper notice of intention to institute proceedings.
4. File an Application with the Court
If an agreement cannot be reached, an Application for Spousal Maintenance must be filed with the Federal Circuit and Family Court of Australia. This includes an Affidavit outlining financial need showing the applicant’s expenses and the other party’s capacity to pay. The Affidavit must also address relevant matters. Other documents must also be filed.
5. Court Consideration and Decision
At a hearing, the court will consider the financial circumstances of both parties, taking into account factors such as age, income, health, childcare responsibilities, and future earning capacity. The court may order:
- Periodic payments (weekly, fortnightly, or monthly)
- A lump sum payment
- Other orders
6. Enforcing a Maintenance Order
If a party fails to comply with a maintenance order, enforcement proceedings may be necessary. The recipient can seek court intervention to ensure payments are made as ordered.
Important Considerations for Spousal Maintenance
- Time Limits: Applications must be made within 12 months of a divorce order becoming final or two years after separation for de facto couples. Leave must be sought for applications out of time which can be difficult, time consuming and costly.
- Financial Independence: Maintenance is often temporary, providing support while the recipient becomes self-sufficient.
- Changing Circumstances: If financial situations change (e.g. job loss, remarriage, income increase), maintenance orders can be varied or discharged.
- Tax: Advice should be sought from a suitably qualified accountant about these issues.
- Court vs. Private Agreements: Spousal maintenance can be set through a Binding Financial Agreement (BFA) or a court order, with legal advice recommended and mandatory for a Binding Financial Agreement.
How Daykin Family Law Can Help
Understanding spousal maintenance in Australia can be complex, especially when navigating financial obligations and legal requirements. Daykin Family Law provides clear, practical legal advice to help individuals determine their eligibility, negotiate fair outcomes, and, where necessary, apply for maintenance through the court.
Need guidance on spousal maintenance? Contact our team today for expert legal advice.
It may come as a surprise to some that when a relationship ends, one party might still be compelled to make a lump sum or ongoing payments to support their former spouse. Even if you do not have children with your former partner, you may still be required to pay a certain amount if the necessary requirements of “Spousal Maintenance” have been met. Spousal Maintenance is completely separate to child support, but the two are often misconstrued and taken to be one and the same.
In this article, we will discuss the differences between child support payments and spousal maintenance payments and briefly explain obligations in respect of these.
What is Spousal Maintenance?
Spousal Maintenance is essentially financial support that is paid by one former partner to the other partner of a marriage or de facto relationship that has broken down in circumstances where the other party is unable to adequately support themselves. It is money which is to be used by the recipient to assist in payment of their reasonable living expenses.
You might be asking yourself, why would does financial support need to be provided to a former partner if there is no longer a relationship? In short, the law in Australia states that a person may have a responsibility to financially assist their former spouse or de facto partner if that person cannot meet their own living expenses. The duty to support and maintain each other works both ways, and this obligation may continue even after separation.
To be successful in an application for Spousal Maintenance, there are essentially two limbs that must be satisfied. Firstly, the applicant must have a need. Secondly, the respondent must have capacity to pay spousal maintenance. There are a range of factors which the Court consider when a party seeks such orders, such as the age of the parties, care of children and the parties’ income and financial resources, to name a few.
For a clearer understanding of the concept and purpose of spousal maintenance, visit our article on What is Spousal Maintenance?
Child Support
Child Support, on the other hand, refers to the financial support by a parent specifically for their child/ren. A private arrangement for the payment of child support can be negotiated between the parties and recorded in a Binding Child Support Agreement or a Limited Child Support Agreement. For the former, both parties need independent legal advice. Such agreements can cover the payment of periodic child support (a regular amount for example) or non-periodic amounts. Non-periodic amounts can include payments towards costs such as education, medical and extra-curricular costs. Lump sum payments are also possible.
Alternatively, or in conjunction with the above, Child Support may be assessed at a particular rate by the Department of Human Services (Child Support Agency). Child Support matters are managed by Services Australia which is the entity that administers the Australian Child Support Scheme. The Family Court or Federal Circuit Court of Australia does not generally deal with Child Support matters, although it may be possible to apply to the Federal Circuit Court of Australia for a departure from a child support assessment carried out by the Child Support Agency in certain circumstances.
Time limitation for Spousal Maintenance
It is important to note that there is a time limitation for a party to make a claim for Spousal Maintenance against the other party. This date is 12 months from the date that a divorce order takes effect if you were married, and 24 months from the breakdown of your relationship if you were a de facto spouse.
Interestingly, the Court still has power to grant permission (“leave”) to a party who is making an application for spousal maintenance (married) or maintenance (de facto) even if that party is out of time. For this, the party making the application will need to demonstrate hardship.
What this means in practical terms, is that in some circumstances, it could be possible to make an application for Spousal Maintenance even after the limitation period has elapsed and/or after property settlement has been finalised.
Seek legal advice
There is no one particular way to approach matters involving Spousal Maintenance and Child Support, as it will really depend on the individual circumstances of every case. This is why it is always best to seek legal advice about your situation, obligations and entitlements, as well as tailoring the best options to your needs and the needs of your family.
Sometimes people do not realise that they may be entitled to receive payments from their former partner by way of spousal maintenance. Likewise, some people might fail to recognise the risk of there being a potential Spousal Maintenance application made against them in the future even after they finalise a property settlement. There are ways to limit potential future liability in this regard, such as entering into a Binding Financial Agreement which effectively extinguishes spousal maintenance rights for one or both parties.
Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
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) 3852 5490 to make an appointment for a fixed fee initial consultation today.
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.
For a clearer understanding of the concept and purpose of spousal maintenance, visit our article on What is Spousal Maintenance?
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:
- 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.
- 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:
- Age and state of health of the parties;
- Income, property and financial resources of the parties;
- Ability for each of the parties to obtain appropriate employment;
- Any duty of each of the parties to support a child or other person;
- Eligibility for allowances or benefits from the State or Commonwealth or their superannuation fund; and
- 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.
