Spousal maintenance is when a person is required to provide ongoing financial support by way of a monetary payment to their former spouse or partner following the breakdown of a marriage or de facto relationship. It is separate to property settlement and child support.
Am I entitled to spousal maintenance?
The Family Law Act 1975 (Cth) provides for an ongoing legal responsibility to financially assist or ‘maintain’ their former spouse or partner if:
- that person cannot meet their own reasonable expenses from their income; and
- the other person has the financial capacity to pay.
If a person makes an application to the Federal Circuit and Family Court of Australia (the Court) for spousal maintenance, they need to show that their own reasonable expenses are greater than their income because:
- they have the care and control of a child(ren) of the relationship who is under the age of 18 years; or
- they are unable to work, or work at full capacity due to age, physical or mental capacity; or
- any other adequate reason, which can include:
- the care of an adult child with a disability; or
- even if they are working at full capacity, they are still unable to meet their reasonable needs.
Spousal maintenance can be on an interim (short term) basis or on a final basis in particular circumstances. Spousal maintenance generally occurs on an interim basis until a final property settlement is reached.
How do I receive spousal maintenance?
If you are entitled to spousal maintenance, you can negotiate to receive spousal maintenance with your former spouse or partner (usually with the assistance of a lawyer) or you can make an application to the Court.
There are time limits to making an application to the Court. If you are divorced, you have 12 months from the date of your Divorce Order to apply to the Court. For de facto couples, it is two years from the date of your separation. If you have been divorced for more than 12 months or it has been over two years since you separated from your de facto partner, you will require leave (permission) from the Court to seek spousal maintenance.
It is recommended to formalise any agreement reached to pay or receive spousal maintenance by Consent Orders or a Financial Agreement.
How long can I receive or be required to pay spousal maintenance?
An order for spousal maintenance can be varied or end in the following circumstances:
- The payment period is met;
- The death of a party;
- If a party remarries; or
- If the parties’ circumstances change, such as if they no longer have the capacity to pay or no longer have a need for spousal maintenance.
You can also “contract out” of the obligation to pay spousal maintenance if the other person agrees. You can document this in a legally enforceable way through a Financial Agreement.
How Moores can help
Our team at Moores can advise you on the law around spousal maintenance, including whether you are entitled to or obligated to pay spousal maintenance.
Contact us for more detailed and tailored help or get started with the Moores Family Law online assistant. The service is confidential and free, you’ll get valuable feedback and a personalised separation plan.