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.
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.
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.
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.
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.
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:
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.
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.
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:
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.
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.
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.
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.
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.