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.
