Spousal Maintenance

Following the breakdown of a marriage or de facto relationship, questions often arise about spousal maintenance and the ongoing financial support for a party, particularly in circumstances where one party hasn’t worked for reasons including looking after the children, incapacity or age.

What is spousal maintenance?

Spousal maintenance is an agreement between former partners where one person will provide continuing financial support to the other after the breakdown of their marriage or de facto relationship. Spousal maintenance can also be referred to as “alimony”, which is the terminology used in the United States.

Spousal maintenance is different to child support or adult child maintenance, which is specifically financial support for children.

Who Can Apply?

A spouse or de facto partner in need of financial assistance from their partner can file an application.

When is spousal maintenance paid?

Spousal maintenance can be paid in a few different ways.

It is usually periodic monthly monetary payments from one partner to the other. These can be cash payments, or payment of expenses for a spouse’s daily living costs such as mortgage instalments, payments of rates, utilities, health care costs, and other household expenses.

You can also receive a lump sum final cash payment as part of a property settlement.

Can spousal maintenance be included in a property settlement?

Yes. Spousal maintenance can be an essential consideration when finalising a family law property settlement and it may be included by way of a lump sum.

How do I make an application?

If an agreement for Spousal maintenance cannot be reached, you can apply to the Family Law Courts by lodging an application, a supporting affidavit and a financial statement setting out your current financial position. This application can be made together with a final financial property settlement or on its own.

When can I apply?

A person can apply for spousal maintenance from the day of separation from their partner or spouse.

Married couples do not need to wait for their divorce to be finalised.

Is there a time limit?

Yes, and that time limit depends on if you were married or in a de facto relationship.

You only have one year from the date of your divorce order to file a spousal maintenance application. After the 12 months has expired you are required to seek leave from the Court, by proving hardship, in order to file an application for spousal maintenance out of time.

With respect to de facto couples (including same sex couples), a spousal maintenance application needs to be filed within two years from the date of separation. Once the two year period expires you will also be required to prove hardship before being allowed to make an application for spousal maintenance.

Do I have to pay spousal maintenance?

It depends. The Family Law Act 1975 states that one party to a  marriage or/de facto relationship is liable to maintain the other party to the extent that one party can reasonably do so and if, and only if, the other party is unable to support her/himself adequately.

How long am I required to pay?

It depends. The duration for paying spousal maintenance is assessed on a case by case basis.

It can be paid on an ongoing basis while divorce proceedings are being finalised. Alternatively, it can be paid in one lump sum at the end of a property settlement.

The payment of spousal maintenance can be ordered for an indefinite period of time or it can be ordered for a specific periodic of time with a set end date.

Alternatively, parties can opt out of paying spousal maintenance by entering into a binding financial agreement.

Typically, spousal maintenance payments are limited to a set period of time to enable the other party to receive financial support while they obtain qualifications to support themselves independently.

How is spousal maintenance assessed?

The Court uses a threshold test, which is sometimes summarised as “need versus ability to pay”. The Family Courts will look at proposed payer’s income, property and financial circumstances to determine your capacity to pay.

The Court also looks at the following factors:

  • Which partner has the care and control of a child of the relationship under the age of 18 years.
  • Your age and physical/mental capacity for gainful employment.
  • The standard of living that is reasonable within the context of the family.
  • Any other adequate factors, such as family income and resources, commitments to support oneself and children.

Can I defend an application?

Yes. If a person has applied to the Court seeking provisions for Spousal maintenance payments, the person defending a spousal maintenance application can file a response setting out the reasons why the spousal maintenance application should fail. To be successful, you will need to demonstrate the following:

  • You do not have additional funds available after meeting your own reasonable living expenses; and/or
  • The party applying is choosing not to exercise their full capacity to earn an income.

Can Hickey Lawyers help me? 

Hickey Lawyers Family Law team have the expertise and experience to provide you with legal advice with respect to making or defending an application for spousal maintenance.

Our family lawyers also have the advantage of working with specialist Family Law barristers, tax lawyers, financial planners and accountants to do this as efficiently and successfully as possible.

Contact our family law team for a free 45 minute no obligation consultation to discuss your family law spousal maintenance matter.

EXPERIENCED LAWYERS

Jill Wolff

Special Counsel

BA, JD, GradDipLP

Jill heads our Family Law area of practice, bringing experience, knowledge and a practical approach to the firm.

+61 (0)7 5556 7439

Hannah Marchmont

Solicitor

LL.B, GradDipLP

As a member of the Hickey Lawyer’s Family Law team, Hannah advises clients on a range of Family Law matters including parenting, property settlements, de facto relationships and divorce.

+61 (0)7 5556 7457