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.