Spousal Maintenance

Spousal maintenance can be awarded to make one person financially support their former partner following the breakdown of their relationship. There are many factors that are considered and it is important to get the right advice early from an experienced family lawyer on how to deal with these issues.

The Family Law Act 1975 (Cth) (the Act) is the law that deals with divorce, parenting, property and maintenance issues in Australia. The Act is complicated and it deals with both people having a responsibility to support and maintain each other as far as they can.

Spousal maintenance is specifically there to assist a spouse or ex de facto partner if they cannot meet their expenses from their own income or assets after divorce or separation. It is designed to allow that person to be able to receive some support from their former partner so that they can re-train, upskill or re-enter the workforce to be able to adequately support themselves moving forward.

There are certain criteria that a person has to establish before they are eligible to receive spousal maintenance. Some of these criteria are:

• They are caring for a child or children from the relationship under the age of 18.
• They are unable to adequately support themselves

Often spousal maintenance is not something that someone will agree to pay and will often require an application to the Court to determine a party’s rights. A Judge will then need to consider aspects about both parties’ financial information, including reading your Financial Statements, before making a decision about the amount (if any) that needs to be paid and the length of time the payments need to go for.

Some things that the Court looks at are a person’s:

• age;
• health;
• ability to work;
• income;
• assets;
• standard of living; and
• whether the marriage/relationship has affected your ability to work.

The obligation to financially support the person can exist after the separation or divorce and depends on the individual circumstances. Both parties have a duty to support and maintain each other as much as they can.

There is also an ability to have the Court urgently consider your need for maintenance and this is often raised when one person has no access to funds and is not able to support themselves. If these circumstances apply to you then you should contact one of our family lawyers today so that you are not left suffering.

Time limits do apply for spousal maintenance applications. Applications can be submitted outside of the timeframe, but not always granted. The time frames are as follows:

• for married couples – within 12 months of the divorce becoming final.
• for de facto couples – within 2 years of the breakdown of your de facto relationship.

If you are considering a separation or are considering making an application for spousal maintenance or have received a claim then you should obtain the correct legal advice. Failing to respond correctly and not preparing can mean that the application is adjourned or if you are being asked to pay spousal maintenance, that more spousal maintenance will be ordered than you can actually afford to pay.

Our family lawyers will help you by assessing the claim and ensuring that your matter is presented in the most professional and organised manner to give it the best chance of success.

We understand the crucial elements of family law and are also a professional legal team.

Call one of our family lawyers to discuss your matter today or complete our enquiry form here.

FAQs

How do I apply for Spousal Maintenance?

If the other person does not agree to pay you willingly, you can apply for spousal maintenance by applying to the Federal Circuit Court of Australia for an order of spousal maintenance.

At the same time as doing this you would usually also make an application for other orders, such as property or parenting orders, so that everything can be dealt with as soon as possible.

How long does spousal maintenance last for?

Spousal maintenance is typically for a short period of time but, can be longer depending on individual circumstances. The court will assess the ability of the person to take care of themselves and how they will be provided for financially.

How much would I need to pay?

The court will determine both parties needs and abilities. There is no one size fits all approach and it will depend of the following factors:

• age and health
• ability to work
• standard of Living
• affect of the marriage on the ability to earn an income
• income and assets

Once the court has decided on the criteria, it will determine the amount to be paid and how long the payments will last for. It may be that the payments can be lump sum or periodic.

To figure out the amounts that need to be paid the Court considers each party’s income and expenses and looks at what disposable income is left over. Preparation is key in these matters.

What happens to my spousal maintenance if I start a new relationship?

If you marry another person or commence a de facto relationship the court will assess your financial situation and consider your financial circumstances. An ex-spouse or partner who is paying maintenance may make an application for the spousal maintenance payments to be amended and we can assist in providing expert advice on how a change in your circumstances will affect what spousal maintenance is paid.

The professional development of our family lawyers matters greatly to us so that we can improve the service that our law firm provides to our clients. Our family lawyers are members of the Family Law Section of the Law Council. The Council seeks to influence the development and practice of family law in Australia and the also promote the professional excellence of family lawyers. 

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