Spousal Maintenance

What is Spousal Maintenance?

Spousal maintenance in Australia is when one partner provides ongoing financial support for their former partner, after a relationship breakdown. At Meillon & Bright, we provide advice to a party of their obligation in supporting a spouse or de facto partner, and also to a person’s entitlement to spousal maintenance.

A person may claim spousal maintenance from their former spouse under the Family Law Act 1995 (Cth) or under the Family Court Act 1997 for de facto couples in Western Australia.

Both statutes do not specifically define what spousal maintenance is, however it is commonly understood as being financial payment(s), either periodical or lump sums, made by one spouse for the benefit of the other, to assist that spouse post-separation or divorce.

When can an application be made?

An application for spousal maintenance can be made immediately after separation.

If you are married, you do not need to wait for your divorce order to be made. However, there is a time limit of 12 months after the date of your divorce or annulment, to make an application.

If you were in a de facto relationship, you have two years from the date of separation to make an application.

What is the threshold? Or What does the court consider?

Spousal maintenance may be payable where:

1. One party is unable to adequately support themselves; and
2. The other party has the financial capacity to support their former spouse.

The extent of the support is determined by balancing the needs of the applicant with the capacity of the other party to pay.

The threshold test applied by the Family Court to determine whether or not a need for maintenance may arise are by reason:

1. Of having the care of a child (or children) of the marriage who have not turned 18 years of age;
2. Of age or physical or mental incapacity for appropriate gainful employment; or
3. For any other adequate reason.

What does the court consider when assessing a claim for spousal maintenance?

The court will take into account a number of factors, including:

1. Age and state of health of each party;
2. The income, property and financial resources of each party and the physical and mental capacity of each for appropriate gainful employment;
3. Whether either party has care or control of a child of the marriage (or relationship);
4. The commitments of each party that are necessary to enable the party to support himself or herself and a child of another person;
5. The responsibility of either party to support any other person;
6. The eligibility of either party for a pension, allowance, benefit or superannuation;
7. A standard of living that in all circumstances is reasonable (see the spousal maintenance case of Bevan to assist with this);
8. The extent to which payment of maintenance would increase the earning capacity of the applicant to enable that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
9. The duration of the marriage (or relationship) and the extent to which it has impacted the applicant’s earning capacity;
10. The need to protect a party who wishes to continue that party’s role as a parent;
11. Financial circumstances relating to the cohabitation with another person;
12. The terms of any order made or proposed to be made in relation to the property of the parties;
13. Any child support that a party has provided or may be liable to pay.

The 3 types of spousal maintenance

There are three types of maintenance:

1. Urgent maintenance (or immediate maintenance)
2. Interim order for maintenance
3. Final order for maintenance

The deadline for issuing an application for spousal maintenance (and a property order) is 12 months after a divorce order has taken effect, except by leave of the court or consent of the parties.

To apply out of time, you must satisfy the court that:

1. The hardship would be caused to a party or a child if leave was not granted; or
2. In the case of spousal maintenance proceedings, that at the time of the deadline, the applicant was unable to support himself or herself without an income-tested pension, allowance or benefit.

This time limit does not apply to applications to vary, revive, suspend or discharge an order.

The in’s and out’s of spousal maintenance are a complex area of law.

Together with the legislation, the case law around spousal maintenance can assist parties in determining whether they are entitled to maintenance (or should be paying) and if so, whether this is urgent maintenance, interim maintenance or such monies should be paid forever.

Which type of maintenance is best for a party is variable on the individual set of facts and circumstances.

Is spousal maintenance an automatic entitlement?

No.

An order for spousal maintenance will only be made if a party cannot adequately support themselves with their own personal income and assets, and their former partner has capacity to financially support them.

If you have recently separated and need assistance in relation to spousal or de facto maintenance, the Meillon and Bright team can assist you and provide you with further advice.