Mid Mountains Legal Blog

Spousal Maintenance

Anthony Steel

After the breakdown of a de-facto relationship or marriage, questions may arise about spousal maintenance and ongoing financial support for a party, particularly when one party hasn’t worked for reasons such as caring for the parties’ children, incapacity, or age.

WHAT IS SPOUSAL MAINTENANCE?

Spousal maintenance is an agreement between former partners where one person will provide continuing financial support to the other after the breakdown of their marriage or de facto relationship. Spousal maintenance is also referred to as “alimony” (the terminology used in the U.S).

Spousal maintenance is different to child support and child maintenance, which is financial support specifically for children.

WHO CAN APPLY FOR SPOUSAL MAINTENANCE?

A spouse or de facto partner needing financial assistance from their ex-partner can file an application.

WHEN IS SPOUSAL MAINTENANCE PAYABLE?

Generally, spousal maintenance is payable where:

  1. One party needs financial support;
  2. The other party has the capacity to provide that support; and
  3. It would be appropriate to provide the support.

HOW IS SPOUSAL MAINTENANCE PAID?

Spousal maintenance can be paid in different ways.

It can be periodic monthly monetary payments from one partner to the other. These can be cash payments, payment of expenses for daily living costs such as mortgage instalments, payments of health care costs, utilities, rates, and other household expenses.

Or it can be paid as a lump sum final cash payment as part of a property settlement.

CAN SPOUSAL MAINTENANCE BE INCLUDED IN A PROPERTY SETTLEMENT?

Yes. When finalising a family law property settlement it may be essential to consider whether spousal maintenance should be paid, generally as a lump sum.

HOW DO I APPLY FOR SPOUSAL MAINTENANCE?

A spousal maintenance application can be lodged in the Federal Circuit and Family Court of Australia (FCFCOA) by filing an Initiating Application with supporting affidavit evidence and a Financial Statement setting out your current financial position. You can make an application together with a final financial property settlement or on its own.

WHEN CAN I APPLY FOR SPOUSAL MAINTENANCE?

You can apply for spousal maintenance from the day you and your partner or spouse separate.

Married couples need not wait for their divorce to be finalised.

IS THERE A TIME LIMIT TO FILE AN APPLICATION?

Yes, the time limit for married and de facto couples is different.

You must file a spousal maintenance application within 12 months after your divorce order. After 12 months you must lodge a preliminary application proving hardship before you can apply for spousal maintenance.

De facto couples (including same sex couples) must file a spousal maintenance application within two years after they separate. After two years a party must prove hardship before they can apply for spousal maintenance.

MUST I PAY SPOUSAL MAINTENANCE?

The Family Law Act 1975 (the Act) provides that a party to a marriage or de facto relationship is liable to maintain the other party to the extent that they reasonably can if, and only if, the other party is unable to support themselves adequately.

HOW LONG MUST I PAY SPOUSAL MAINTENANCE?

The duration for paying spousal maintenance is assessed on a case by case basis.

It can be paid on an ongoing basis while property settlement proceedings are being finalised, or in a lump sum at the end of a property settlement.

Payments can be ordered for an indefinite period or for a specified period with a set end date.

Alternatively, parties can opt out of paying spousal maintenance by entering into a binding financial agreement.

HOW IS SPOUSAL MAINTENANCE ASSESSED?

The FCFCOA applies a threshold test, which may be summarised as “need versus ability to pay”.

The FCFCOA looks at the following factors:

  1. Which partner has the care and control of children of the relationship under 18 years of age.
  2. Your age and physical/mental capacity for gainful employment.
  3. The standard of living considered reasonable in your family circumstances.
  4. Any other adequate factors, such as family income and resources, commitments to support yourself and children.

CAN I DEFEND A SPOUSAL MAINTENANCE APPLICATION?

Yes. The person defending a spousal maintenance application can file a Response to an Initiating Application with affidavit evidence and a Financial Statement in support in the FCFCOA.

WHAT NOW?

Contact Mid Mountains Legal. We have the expertise and experience to advise you about making or defending a spousal maintenance application.

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