Spousal maintenance is financial support one partner may need to pay the other after a marriage or de facto relationship ends. If one person can’t support themselves, they may be entitled to receive this support. It helps ensure that both partners can maintain a reasonable standard of living after separation.
We’ll explore how it is defined in Australian family law and who is potentially eligible or may be required to pay it.
What is Spousal Maintenance?
Spousal maintenance refers to financial support from one former partner to the other after a marriage or de facto relationship has ended. Under the Family Law Act, it is designed to ensure that the lower-earning spouse can maintain a standard of living similar to that enjoyed during the relationship. Spousal maintenance is payable to those who cannot adequately support themselves.
Spousal Maintenance In Australian Family Law vs Alimony in the US
In Australia, spousal maintenance is governed by the Family Law Act to ensure the lower-earning spouse is supported after separation. Unlike alimony in the US, which can be awarded indefinitely, Australian law generally focuses on the earning capacity of both parties. Maintenance orders are more likely to end once the recipient becomes self-sufficient or remarries.
Eligibility For Financial Support
Spousal maintenance can be payable if one party needs spousal maintenance (i.e., that person’s reasonable expenses are greater than their income) and the other party can pay (i.e., that person’s income exceeds their reasonable expenses).
The age and health of the parties, as well as their income, property, financial resources and ability to work, will be considered in any application for spousal maintenance. If you receive spousal maintenance, it may be paid short-term or longer-term, depending on each party’s needs.
De Facto Relationship Spousal Maintenance Claims
In Australia, de facto couples have the same rights to claim spousal maintenance as married couples under the Family Law Act. If one partner cannot support themselves after the de facto relationship ends, they can apply for financial support from the other partner.
To apply for de facto maintenance, the applicant must apply to the Federal Circuit & Family Court of Australia Court, providing evidence of their financial hardship. The court will then decide whether maintenance is appropriate and how much is payable. Depending on the case, this can be in the form of periodic payments or a lump sum.
Factors Considered in Spousal Maintenance
Consideration will be given to what is a reasonable standard of living and reasonable living expenses in the parties’ particular circumstances. Factors such as whether either party’s ability to earn an income has been affected by the relationship (e.g., spending time out of the workforce to care for children) will also be considered.
To be eligible for spousal maintenance in Australia, the applicant must demonstrate that they cannot adequately support themselves due to a lack of financial resources or earning capacity. The Family Law Act outlines that factors like the financial situation, health, age, and earning capacity of both parties, as well as any children, will be considered. De facto couples may apply for de facto maintenance if the relationship ends.
Will I Need To Pay Maintenance To My Ex-Partner?
You may be required to pay spousal maintenance if your former spouse cannot support themselves adequately. Factors such as the financial situation of both parties, which includes income, property and financial resources, will determine the amount of maintenance payable based on the ability of the respondent to contribute.
You may also have to provide financial assistance if your former spouse has limited income or resources. The amount of spousal maintenance payable will be decided based on all the circumstances of each party.
How Long is Spousal Maintenance Paid For?
The duration of spousal maintenance payments depends on various factors, including the recipient’s financial situation and whether they can support themselves through gainful employment and pay maintenance to the applicant. In some cases, spousal maintenance may be paid for a limited period, while in others, it may continue indefinitely until the recipient becomes self-sufficient or remarries.
How Do I Apply For Spousal Maintenance?
To apply for spousal maintenance, you need to follow these steps:
- Check eligibility: Ensure you meet the criteria, such as not being able to support yourself due to financial hardship.
- Attempt to resolve with your former partner: It’s often recommended that you try resolving the issue with your former partner through mediation or negotiation to avoid the matter ending up in court.
- Apply: If informal resolution doesn’t work, you can apply to the Federal Circuit & Family Court of Australia for a spousal maintenance order.
- Provide evidence: You’ll need to show your financial situation, including income, expenses, and any special circumstances that make it hard to support yourself.
- Attend court hearings: Commencing legal proceedings may be necessary if you and your former partner cannot resolve disputes. If your case goes to court, both parties will present their information, and the judge will decide based on the Family Law Act.
Getting legal advice to manage the process is wise. Spousal maintenance payments can often be organised while property settlement takes place.
Interim & Final Orders For Spousal Maintenance
Court orders may be required if you and your former partner do not reach a private agreement. Interim orders for spousal maintenance are temporary arrangements made while legal proceedings are ongoing.
These orders ensure that the party in need receives financial support during the process. Final orders, however, are long-term arrangements made once the case has been fully assessed. They take into account the parties’ property and financial resources, as well as other circumstances, including the recipient’s earning capacity.
Lump Sum Or Periodic Payments For Spousal Maintenance?
Spousal maintenance can be paid as a lump sum or through periodic payments. A lump sum payment may be used when there is a substantial asset or inheritance or when the parties agree on one-off financial assistance.
Alternatively, regular payments may be made for ongoing support, depending on the recipient’s needs and the payer’s capacity. This decision is made during legal proceedings, often after resolving disputes.
Does Spousal Maintenance Include Child Maintenance?
Spousal maintenance is separate from child maintenance, which is intended to support children following separation. Child support is calculated based on the paying parent’s income and the child’s needs.
While spousal support ensures that the lower-earning partner can maintain a standard of living, child maintenance covers the ongoing financial needs of the children, and both can be awarded concurrently.
What Happens If The Circumstances Of Either Party Change?
If the circumstances of the payer or recipient change, either party may apply for spousal maintenance adjustments. For example, if the payer’s income increases or the recipient becomes more self-sufficient, the maintenance payments may be reduced or stopped.
Conversely, if the recipient’s financial situation worsens, they may seek an increase in spousal maintenance, depending on the respondent’s capacity to make payments. Legal proceedings can be commenced to modify spousal maintenance orders based on both parties’ financial situation and capacity.
Time Limits for Spousal Maintenance Applications
An application for spousal maintenance can be made up to twelve (12) months after a Divorce Order becomes final if you were married or up to two (2) years after the breakdown of a de facto relationship. Parties can, however, enter into a Binding Financial Agreement that extinguishes either party’s claim for spousal maintenance at any time.
A party who has remarried is not entitled to make an application for spousal maintenance. If a party has entered into a new de facto relationship, the financial relationship between that party and their new de facto partner will be considered as part of any application for spousal maintenance.
Seeking Legal Advice
If you would like more information about applying for Spousal Maintenance or entering into a Binding Financial Agreement to protect yourself from a spousal maintenance claim, please do not hesitate to contact our team at Stewart Family Law to arrange an initial consultation.
