What You Need to Know About Spousal Maintenance

So, you have separated from your partner and now you’re wondering how you’ll make ends meet. Financial stress after separation is one of the most challenging aspects of separation or divorce. On top of dividing assets, you must rearrange your lifestyle to fit into an often significantly smaller budget.

Spousal maintenance may be able to help you get through this difficult time. But what is spousal maintenance? How do you get it? And who is eligible? Let’s take a look. 

What is spousal maintenance?

You may be surprised to know that even after you separate you have a financial responsibility to support your ex-partner if they are not able to support themselves. 

In Australia, spousal maintenance is a payment made by one spouse to the other after separation or divorce to provide financial support. The payment is made to assist the recipient spouse to maintain a reasonable standard of living. 

Spousal maintenance can be agreed upon by the spouses through a binding financial agreement, or it can be ordered by the court. 

Who can apply for spousal maintenance?

If you have separated from your partner, whether you were married or in a de facto relationship, you may be eligible for spousal support under the Family Law Act 1975. 

In Australia, either married couples who are separated or divorced, or de facto couples who have separated, can apply for spousal maintenance. To be eligible for spousal maintenance, the person seeking support must demonstrate a financial need and the other party must have the financial capacity to provide support. The court will consider a range of factors to determine whether spousal maintenance should be awarded, such as the length of the relationship, the income and earning capacity of each party, and the standard of living during the relationship.

That said, how are spousal maintenance payments worked out?

How do the courts work out spousal maintenance?

The first two things the Courts look at when working out spousal maintenance is:

• The need of the applicant
• The other person's capacity to pay

The court will then consider a range of factors when deciding whether spousal maintenance is appropriate, including:

• The income, property, and financial resources of each spouse
• The age and health of each spouse
• The income-earning capacity of each spouse
• Whether the recipient spouse is caring for a child of the relationship and
• Whether the recipient spouse is caring for a child or children with special needs
• The standard of living of the parties during the relationship
• The extent to which the recipient spouse contributed to the other spouse's income, earning capacity, or property

Spousal maintenance in Australia can be either ongoing or for a fixed period of time, and it can be adjusted if circumstances change, such as if the recipient spouse starts earning more income or if the payer's financial circumstances change. 

The Courts will use all this information to help determine whether there is a significant disparity between you and your ex-partner and use this to work out the level of payments you will receive if they deem it necessary. 

Are there limitations to spousal maintenance?

There are several limitations to spousal maintenance you need to be aware of:

1. Starting a new relationship

It’s natural that at some point after separation you will start to think about beginning a new relationship. 

If you choose to enter a de facto relationship while receiving spousal maintenance, the Court may take into consideration the financial relationship between you and your new partner to determine whether you are able to support yourself adequately. This may mean a reduction in, or the ceasing of, spousal maintenance. 

If you decide to remarry, then your spousal maintenance entitlements will stop unless the Court orders otherwise. 

2. Annulled marriages 

An annulment is also known as nullifying your marriage. This is when you apply to the Courts to have your marriage declared void, as if you were never technically married.

In this instance you can still apply to the Courts for spousal maintenance, but you must apply within 12 months of the decree of nullity being made. If you want to start proceedings for spousal maintenance outside of this time, you must first ask the Court for leave (permission) to apply.  

3. De facto relationships

There is a time limit on applying for spousal maintenance if your relationship was de facto in nature. You must apply to the Court within two years of your relationship breaking down, if you wish to apply for spousal maintenance outside of this window you must ask the Court for leave. 

Spousal maintenance payment methods

Being awarded spousal maintenance doesn’t automatically mean you’ll get a regular payment. Spousal maintenance can include:

• Payment of ongoing necessary expenses
• A one-off payment of a certain expense
• A lump sum payment
• Periodic payments
• Use of an asset until a property settlement is reached – for example a car or living in the family home 

Do you have to have a lawyer to apply for spousal maintenance?

You’re not legally required to have a lawyer represent you when seeking spousal maintenance. However, family law is complex and getting legal advice from an experienced family lawyer will help you better understand your rights and responsibilities.