Spousal maintenance is the payment of money from one party to a marriage or de facto relationship to the other to help financially support them when they are unable to adequately support themselves. This type of pay is different to a property settlement or child support.
Am I entitled to receive or do I have to pay spousal maintenance?
After parties separate, they each have an ongoing responsibility to financially assist or ‘maintain’ their former partner if that partner cannot meet their own reasonable expenses from their income.
The Court will order the payment of spousal maintenance where:
- One party’s income is not enough to meet their own reasonable living expenses; and
- The other party has the financial capacity to meet the shortfall.
Spousal maintenance can be on an interim (short term) basis or on a final basis in special circumstances. Spousal maintenance is generally ordered on an interim basis until a final property settlement is reached.
How does the Court determine a party’s need for spousal maintenance?
If a party makes an application to the Federal Circuit and Family Court of Australia (the Court) for spousal maintenance, they need to show that they have they have a need for maintenance because their own reasonable expenses are greater than their income because:
- They have the care and control of a child or children of the relationship who is under the age of 18;
- They are unable to work, or work at full capacity due to age, physical or mental capacity; or
- Any other adequate reason, which can include:
- The care of an adult child with a disability; or
- Even if they are working at full capacity, they are still unable to meet their reasonable needs.
Importantly, government benefits such as a single parent payment or Family Tax Benefits are not taken into account for the purposes of assessing a party’s income.
How does the Court determine a party’s ability to pay spousal maintenance?
The Court considers if a party has any excess income, after meeting their own reasonable expenses, to contribute to the other party.
Types of spousal maintenance payments
If the Court makes an order for the payment of spousal maintenance, it can be in the following ways:
- Urgent – the Court can order urgent spousal maintenance if a party requires immediate financial assistance, usually for a short period of time until the next court hearing.
- Periodic – payments that are on a periodic basis, such as weekly or fortnightly, on an interim basis or final basis (meaning ongoing or to end at a specific time).
- Lump sum – payment or payments that is a lump sum amount.
- Payment of expenses or use of an asset – this includes payments for specific expenses, such as mortgage repayments, or an order to use or occupy an asset such as a car.
How can I receive spousal maintenance?
If you are entitled to receive spousal maintenance, you can negotiate to receive spousal maintenance with your former partner or spouse (usually with the assistance of a lawyer) or you can make an application to the Court.
It is recommended to formalise any agreement reached to pay or receive spousal maintenance by Consent Orders or a Financial Agreement.
Making a Court application – time limits
There are time limits to seek spousal maintenance. If you are married or divorced, it is one (1) year from the date of your Divorce Order. For de facto couples, it is two (2) years from the date of your separation.
How long can I receive or be required to pay spousal maintenance?
An order for spousal maintenance can be varied or end in the following circumstances:
- The payment period is met;
- The death of a party;
- If a party remarries; or
- If the parties’ circumstances change, such as if they no longer have the capacity to pay or no longer have a need for spousal maintenance.
You can also “contract out” of the obligation to pay spousal maintenance if the other party agrees. You can document this in a legally enforceable way through a Financial Agreement.
How we can help
Our Family and Relationship Law team at Coulter Legal can provide you with advice regarding spousal maintenance, including the best way to make or avoid a spousal maintenance claim.
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