Spousal maintenance is when regular payments are made by the former spouse or de facto partner to the other partner, usually on a monthly or fortnightly basis. Spousal maintenance is likely to be required where there is a significant difference in the incomes of the former couple and the recipient party is not going to be able to adequately support themselves without the assistance of their former spouse or partner. Spousal maintenance is separate to the division of the assets of a marriage or relationship required when a marriage or relationship breaks down. The Family Law Act states that a person has the responsibility to financially assist their former partner if they cannot meet their own reasonable ongoing expenses. Before applying for a spousal maintenance order, it is best to try come to an agreement with your former partner through negotiation with lawyers or by using the family dispute resolution process. If an agreement cannot be reached, legal proceedings may be commenced.

 

 

 

 

How will the court determine the payment?

 

As spousal maintenance is not automatic, an application for a spousal maintenance order will need to be applied for within 12 months from the date of the divorce becoming final, or within 2 years of the relationship ending, for de facto couples. If you have taken longer to make this application, you will need to apply for leave from the court. This will involve explaining the reason for the delay and proving that hardship would be suffered if the application is not heard by the court.

There is no formula used to determine how much should be paid, but the court will need to consider the circumstances of the parties and assess multiple factors such as:

  • The applicant’s financial needs;
  • The respondent’s capacity to pay;
  • The applicant’s age and health;
  • The applicant’s income, property and financial resources;
  • The applicant’s ability to work;
  • Whether the applicant has care or control of any children of the marriage under the age of 18 or adult children who are disabled.

 

The case of Moller v Moller also highlights that the courts are reluctant to make orders for payment beyond what is reasonable, and it should not be expected that the same lifestyle and standard of living has to be maintained after separation.

 

Is it permanent?

 

Spousal maintenance is generally only for a limited time, until the recipient party is back in a situation where they can financially support themselves. It will very rarely be ordered on a permanent basis. Often the maintenance will be ordered to allow the receiver time to re-train or finish a course to enable them to become gainfully employed. Spousal maintenance will continue for the time specified in the order, or until the re-marriage of the recipient, the death of the payer or recipient or until there is a significant change in financial circumstances for the paying or receiving party.  To end maintenance before the time specified in the order, a party wishing to do so will need to apply to the court to vary the spousal maintenance orders.

 

 

 

 

More detailed information about spousal maintenance can be found on the Federal Circuit and Family Court of Australia website.

 

Nicola Maltman – Law Clerk – Matthies Lawyers

Should you have any queries in regard to family law matters, including spousal maintenance,  please contact Matthies Lawyers for an obligation free consultation or call +61 3 8692 2517 today.

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.