Spousal maintenance is the term for financial support paid by a person to support their spouse or former spouse post separation.
Spousal maintenance is usually paid where one spouse has a greater income with capacity to support the other, and where the other spouse or former spouse cannot support themselves.
Maintenance payments can be periodic, or they can be made in one lump sum.
Parties involved in de facto relationships can also seek maintenance. The Family Law Act 1975 (“FLA”) stipulates that a person may have a responsibility to financially support their spouse or de facto partner in certain circumstances, which centre around the need of the receiving spouse, and the capacity to pay of the spouse from which it is sought.
It is important to note that the word “alimony” is not used in Australian law and is a distinct and separate area of law within the American legal system which is similar in concept to spousal maintenance.
Who can Apply for Spousal Maintenance?
A person can apply for spousal maintenance if they can demonstrate that they cannot support themselves financially and require the support of their former spouse, or in some circumstances, their current spouse.
Section 71 of the FLA stipulates that a party to a marriage is liable maintain the other party to the extent that they’re reasonably able to do so if the other party is unable to support themselves adequately whether:
- They’re responsible for the care and control of a child of the marriage who is under 18;
- Due to age, physical or mental incapacity for gainful employment; or
- For any other adequate reason.
Section 90SB of the FLA stipulates that maintenance orders may be made only if the Federal Circuit and Family Court of Australia is satisfied that:
- The de facto relationship lasted for a period of at least 2 years; or
- There is a child of the relationship; or
- That:
- The party to the de facto relationship requesting maintenance made a substantial contribution to the relationship; and
- Failing to make the order would result in a serious injustice to the applicant; or
- That the relationship is or was registered.
The court will then also look at the ability of the applicant to support themselves, whether the applicant is responsible for the care of a child under 18, whether the applicant’s age or physical or mental incapacity impacts their ability to obtain gainful employment, or for any other reason that the applicant should receive maintenance from the other party to the relationship.
How Spousal Maintenance is Calculated
Unlike child support, which is calculated based on a formula, spousal maintenance amounts are at the discretion of the Federal Circuit and Family Court of Australia.
The amount payable for parties to a marriage will depend on a number of factors considered by the Federal Circuit and Family Court of Australia set out in section 75 of the FLA including:
- The age and health of both parties;
- The income and financial resources of the parties;
- Whether either party has the care or control of a child to the marriage;
- The responsibility of either party to support another person;
- The eligibility of either party for a pension or allowance;
- What standard of living is reasonable in the circumstances;
- The extent that the maintenance payments would increases the earning capacity of the other party through education or training etc; and
- The duration of the marriage.
Similar factors are considered in relation to de facto maintenance and are listed in section 90SF of the FLA.
Spousal maintenance payments can be made in a variety of ways including as a once off lump sum payment, regular periodic payments such as weekly or fortnightly, or by directly paying certain expenses.
There has been a move in recent years away from spousal maintenance over the long term toward spousal maintenance just as an interim measure until a final property settlement is reached.
Instead of long-term spousal maintenance being commonly ordered, the Federal Circuit and Family Court of Australia has leant towards lump sum settlements rather than spousal maintenance going on for years, to avoid the issues with enforcement in the event the supporting spouse stops paying. This helps to ensure finality and hopefully means the Court resources are not taken up by people needing to enforce spousal maintenance payments over the long term.
Applying for Spousal Maintenance: The Legal Process
Spousal maintenance can be applied for any time after separation but must be applied for within 12 months of divorce, unless leave has been granted by the Court for a delayed application.
For a de facto relationship, spousal maintenance can be applied for up to 2 years after separation.
If possible, most couples should try to reach an agreement themselves regarding spousal maintenance. If this is not achievable, an application can be filed with the Federal Circuit and Family Court of Australia seeking spousal maintenance orders.
Generally, applications for spousal maintenance are made alongside other applications such as parenting and final property settlement applications.
The Role of Family Lawyers
Although spousal maintenance applications can be made without the help of a lawyer, it is recommended to seek legal advice and have a lawyer make the application.
Family law is a complex area of the law that requires specialist knowledge, so it is important to seek help from an experienced family lawyer.
Changing or Ending Spousal Maintenance
Spousal maintenance payments may cease if the person receiving the payments re-marries or their financial situation improves or the person paying the maintenance dies.
Either party can apply to the Federal Circuit and Family Court of Australia to vary or end maintenance orders made by the Court. Engaging a family lawyer may result in better outcomes for your application for spousal maintenance.
Tax Considerations for Spousal Maintenance
Spousal maintenance is not considered taxable income for the person receiving it, and the person paying it cannot claim spousal maintenance as a deduction.
The person receiving the payments will need to report the maintenance amounts to Centrelink if they are receiving Centrelink payments however.
Key Takeaways
A person has a duty to financially assist their spouse or former partner in the event they cannot support themselves financially to live to a standard that is reasonable in the context of what was enjoyed during the relationship, providing the supporting party is shown to have the capacity to render such support.
Spousal maintenance is determined based on the individual circumstances of both parties.
It is important to seek legal advice if you are intending to apply for spousal maintenance, or if you are wishing to rebut a claim for spousal maintenance from the other party.
At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
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Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.