Family & Relationship Law 14 November 2022

What financial support will I need to give my former spouse?

In the event of separation, you or your former spouse may seek a payment from the other to provide you with financial support to assist with your living expenses. These payments are referred to as spousal maintenance. The purpose of these payments, which are usually periodic, is to assist the party in a weaker financial position to adequately support themselves.

Spousal maintenance can be ordered by a Court or parties can reach agreement between themselves.

Spousal maintenance is independent of child support and is therefore paid in addition to child support.

Who can apply for spousal maintenance?

The starting position in relation to spousal maintenance is that a party to a marriage (or a de-facto relationship) is liable to maintain the other party to the extent the other party is unable to do so, if the party is not able to adequately support themselves by virtue of:

  1. having the care of a child under the age of 18 years,
  2. by reason of age or some incapacity that prevents them from engaging in paid employment, or
  3. for any other adequate reason.

The party seeking spousal maintenance must demonstrate that they are unable to support themselves adequately.  Some of the factors that are assessed when considering whether a spouse party can adequately support themselves, in addition to their capacity for employment and or care and control of a child include:

  1. Age and health;
  2. Income, property and financial resources of the party;
  3. The party’s ability to work;
  4. What is a standard of living that in all of the circumstances is reasonable to that party.

Capacity to pay spousal maintenance

The Court will consider the other party’s capacity to pay spousal maintenance.  Capacity is not limited to sources available from income, and in appropriate cases, a capacity to pay spousal maintenance may be assessed on the basis of capital items a party holds and their capacity to borrow.

Are there different types of spousal maintenance?

Yes, there are different types of spousal maintenance that can be requested by a party and is dependent on the stage reached in your proceedings.

Urgent spousal maintenance orders are made when you or your former partner has an immediate need for financial assistance.  For example, when a does not have funds available to meet basic needs including groceries and housing. The intention of the order is to deal with urgent circumstances.  Urgent spousal maintenance orders are usually made shortly after separation and are made in circumstances when the court does not have all the evidence available before it, so the term of the order is short in duration until the court has the ability to revisit the issue.

Interim spousal maintenance orders require the making of periodic payments to be made to a party until the court otherwise orders, usually until when a final property order is made.  Interim spousal maintenance orders are temporary in nature and cease once you and your former partner resolve your financial settlement on a final basis.

Lump sum spousal maintenance orders are provided for a one-off payment, rather than a payment on a periodic basis, and may represent the capitalisation of the periodic sum.  It may also be appropriate where there has been a history of non-payment by the other spouse party and where it is anticipated that there will be an issue as to enforcement in the event of further non-compliance.

In addition, and although uncommon, it is possible for Final Orders for Spousal Maintenance to be made.  However, the Court will take into account the other property orders being made when assessing whether the party will require further financial support. Often, once final property orders have been implemented, you and your spouse’s financial positions have stabilised and the reasonable financial needs of the party requiring maintenance may no longer exist.

How much are the payments?

The amount of spousal maintenance paid is dependent on your circumstances.

Spousal maintenance is a separate payment to any child support payments you or the other party may be assessed to pay.

When can you apply?

  • You or your former spouse can apply for spousal maintenance once you are separated, even if you are still married.
  • If you and your former spouse are divorced, an application for spousal maintenance must be brought within 12 months of your divorce being finalised.
  • If you and your former spouse were in a de facto relationship, an application can be brought within 2 years of your date of separation.
  • If you are outside of these time limits, you or your former spouse can still apply to the Court for spousal maintenance, however you must first seek leave from the Court to do so.

If you require further advice in relation to spousal maintenance the Family & Relationship Law team at Coulter Legal will be able to assist you.

Sarah Guthrie.
Sarah Guthrie Associate Family & Relationship Law View profile
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