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Spousal Maintenance

Spousal Maintenance

Spousal maintenance is financial support paid by a spouse or de facto partner to their former partner after the breakdown of their marriage or de facto relationship.

Spousal maintenance is often paid in circumstances where one spouse has been dependent on the other for financial support and cannot meet their own financial commitments following separation.

Spousal maintenance is different to child support, and for eligible parties, it is paid in addition to child support.


Am I Eligible for Spousal Maintenance?

Under Section 72 of the Family Law Act 1975, spousal maintenance is payable to a spouse or de facto partner where they are unable to support themselves adequately and their former partner has the capacity to provide financial support.

A spouse or de facto partner has the right to maintenance in circumstances where they are unable to support themselves because:

  1. They have care of a child of the marriage under the age of 18 years;
  2. Because of their age or physical or mental incapacity they are limited from obtaining appropriate gainful employment; or
  3. For any other adequate reason, having regard to a number of factors set out in Section 75(2) of the Family Law Act.


The additional factors listed in Section 75(2) include:

  1. The age and health of the party;
  2. The parties’ income, property and financial resources;
  3. The parties’ capacity for gainful employment;
  4. Whether a party has care of a child under the age of 18 years.


Note however that, even if the claiming party meets all of the above eligibility criteria, in order for spousal maintenance to be paid the paying spouse or de facto partner must have the financial capacity to pay. That is, their income must exceed their reasonable weekly expenditure.


How Much Can I Receive by way of Spousal Maintenance?

In assessing the amount of spousal maintenance payable, the Court will consider a standard of living that is reasonable in all of the circumstances. Reasonable does not necessarily mean the standard of living that the Applicant lead prior to the breakdown of the relationship however this is a factor that the Court will consider.

Whether spousal maintenance is payable and the amount that is payable very much depends upon the particular facts of the individual case. The Court will assess each parties’ reasonable weekly expenditure, their income, assets and financial resources and the relevant shortfall or surplus between their income and expenditure.


How Do I Apply For Spousal Maintenance?

Parties seeking spousal maintenance can either negotiate payments “by consent” or by application to the Court. Spousal maintenance payments negotiated by consent can be formalised in Consent Orders or a Binding Financial Agreement.

If an agreement as to spousal maintenance cannot be negotiated, the party seeking maintenance can make an application to the Court for Orders. As part of their application, the applicant must demonstrate that they fulfill the eligibility criteria for receipt of spousal maintenance payments and that the other party has the financial capacity to pay.


Are There Any Time Limits For a Spousal Maintenance Application?

An application for spousal maintenance must be made within 12 months of a Divorce Order taking effect. For de facto couples, a spousal maintenance application must be made within 2 years of the date of separation. If a spouse or de facto partner seeks to apply for spousal maintenance outside of the 12-month or 2-year time limit, the applicant must seek special leave from the Court to issue proceedings out of time. In order to obtain leave of the Court, the applicant must prove that hardship would be caused to the party or a child of the relationship if their application is not heard. For more information about limitation periods, see here.

A spouse or de facto partners’ entitlement to spousal maintenance ceases on the date they marry or enter into a de facto relationship with another person. See here for more information on whether you are in a de facto relationship. The Court will assess the full range of a parties’ financial circumstances, including whether they are receiving financial support from a new partner, when making Orders for spousal maintenance.


I Am in a De Facto Relationship, Am I Eligible to Apply for Spousal Maintenance?

Yes, de facto couples can apply for spousal maintenance. The same eligibility criteria and application process as for married couples. The only difference is that a de facto partner seeking spousal maintenance must make an application within 24 months of the date of separation.


How Is Spousal Maintenance Paid? And How Often?

Spousal maintenance may be paid through regular periodic payments or a lump sum payment. It is usually payable on an interim basis until the parties finalise a property settlement or for a period sufficient to allow the payee to obtain employment that enables him or her to meet their reasonable outgoings. In some instances, spousal maintenance might be paid while one party undertakes a course of study in order to obtain employment, and it ceases upon the parties’ graduation from the course.

Following a separation, often one party will find that they are already receiving some spousal maintenance by way of indirect financial support. The wealthier partner might continue to contribute to the mortgage, bills, rates and utilities on the family home despite living elsewhere, these payments can constitute spousal maintenance.

Spousal maintenance is not administered through an independent government body in the same way as child support, which can be paid through the Child Support Agency. Spousal maintenance is paid privately between spouses or de facto partners.


How Farrell Family Lawyers Can Help You With Spousal Maintenance

Our experienced lawyers can advise you of your rights and responsibilities in relation to spousal maintenance. We can assess whether you meet the eligibility criteria to receive or to pay spousal maintenance, we can negotiate a payment arrangement on your behalf, and we can prepare your application to the Court if necessary.

Contact us today to find out how we can help you.

 

Call us today on +61 3 8393 0144 for a discussion about your Spousal Maintenance matter.

 

 

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