What is it?
The Family Court of Australia has provided the following definitions:
1. Spouse maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.
2. De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.
The basis for such payments is found in the Family Law Act 1975, which states that a person has a responsibility to assist their former partner financially when and if their partner is unable to meet their expenses using only their personal income. These expenses must be reasonable.
The requirement to maintain ones former partner can continue even after separation and divorce are finalised. The amount that is required to be paid in any one case varies as it will also depend on what the maintaining party is capable of paying.
Factors taken into consideration in determining spousal maintenance
The court will consider the needs of the applicant and whether the respondent has the ability to pay.
The following factors (see sections 75(2) abd 90SF for further information) are relevant to both parties in determining when and what to pay.
- Any property owned by you;
- Your financial resources
- Employment or your ability to work;
- A suitable standard of living;
- Whether the marriage has affected your ability to earn;
- Whether you have children living with you;
- Whether you have an adult child who is disabled who lives with you;
- Any other factor the court considers relevant.
It is worth noting that a suitable standard of living does not necessarily mean the same as that prior to the breakdown of the relationship. The standard of living will be assessed according to what is “reasonable in all the circumstances.”
Similarly, the weight of each factor varies depending on the particular circumstances of the individuals in question. Spousal maintenance is not a right nor is it automatic.
Parties who simply choose not to exercise their earning capacity will not receive spousal maintenance or avoid paying it. Deliberately lowering the income you receive may even result in the court attributing a higher income to you.
Examples of situations likely to be eligible for spousal maintenance include:
- One party cannot work as there are children at home and for this reason they cannot exercise their income earning capacity;
- Due to an illness, one party is prevented from working;
- Where one party has been out of the workforce for a significant period of time and has become unskilled;
- Where one party has been out of the workplace for a significant period of time and has become unemployable due to age.
It is generally women who fit within these scenarios but that is in no way a requirement. A man who fits the criteria will be just as eligible as a woman.
Spousal maintenance can take many forms. It may be in the form of regular, periodic payments, one lump sum payment or a combination of the two.
The time for which you receive, or pay, spousal maintenance also varies. Whilst it is generally meant to be a relatively short period following the breakdown of a relationship so as to allow applicants to recover and re-gain a stable financial setting, this is not always the case. It is not uncommon for spousal maintenance to terminate upon the occurrence of a specific condition or event i.e. until a person gains employment or finishes training.
I am already paying child support?
Child support is separate to spousal maintenance. It is made for the benefit of the children and is made in its own right.
Likewise, spousal maintenance is made as a result of a set of different factors and is focused on your former partner.
Children living with your former partner will be taken into account but it is not determinative.
I am in a new relationship – does this affect spousal maintenance?
Spousal maintenance will no longer be available if you marry another person – however the court may order otherwise. See section 82.
New de facto relationships
The court will look at the financial relationship between you and your new de facto partner in deciding if you can support yourself effectively.
Any application for spousal maintenance is required to be made within 12 months of your divorce becoming final.
De facto relationship
Any application for de facto partner maintenance is required to be made within 2 years of the breakdown of the relationship.
Outside of these limits requires permission from the court. This is not granted lightly.
Spousal maintenance is a complex area of law. It is important to note that every case is different and will be decided upon its individual merits. Legal advice should be sought in the event that you think this does, or does not, apply to you and team of our friendly lawyers can assist in providing advice to you in this regard.