Spousal Maintenance

The payment of spousal maintenance (or de facto maintenance) is a responsibility that you or your former partner might have to financially support (maintain) the other person after your separation or divorce.

It differs to child maintenance, and The Family Law Courts can order that you receive spousal maintenance payments in addition to any child support payments that you are entitled to.

What is Spousal Maintenance?

Under the Family Law Act 1975, a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can, depending on their financial circumstances. This obligation can continue even after separation and divorce. The extent of the support depends on the other party's financial capacity, or in other words, what the other party can afford to pay, with the Court giving consideration to a suitable standard of living that is reasonable for both parties.

Spousal maintenance payments can take the form of regular payments, usually over a defined period of time, or a lump sum payment.

There is no automatic entitlement to Spousal Maintenance. Spousal Maintenance must be obtained by an agreement between the parties or by a Court order. Spousal Maintenance will only be ordered by a Court if the Court can be satisfied that:

  • The Applicant’s income and income earning capacity are unable to meet their reasonable living expenses: and
  • The Applicant’s ex partner’s income and income earning capacity, taking into account the ex partner’s reasonable living expenses, can reasonably provide financial support to them.

Calculating Spousal Maintenance

When determining an applicant's prospects for success and calculating the amount of maintenance payable, the Court will consider the following factors for both parties involved:

  • Age, physical health and mental incapacity which may affect the ability to earn an income
  • Income, assets and financial circumstances
  • Ability to work or gain future employment
  • What is a reasonable standard of living
  • Whether the marriage/relationship has affected the applicant's ability to earn an income
  • Whether either party has the primary care of a child under the age of 18
  • Contributions made by both parties to the relationship (both financial and non-financial contributions)
  • The terms of an existing Binding Financial Agreement (BFA).

How long am I required to pay Spousal Maintenance? 

This depends on various factors.

The payment of maintenance can run for an agreed-upon period of time, or indefinitely, dependent on the individual circumstances of each matter. The payment could also be a single lump sum.

Generally, under The Family Law Act 1975, a Spousal Maintenance Order will cease upon:

  • The death of the payee
  • The death of the payer
  • The re-marriage of the payee (except in special circumstances).

If the payee has entered into a new de facto relationship, the payment of spousal support does not necessarily end. There are many factors the Court would need to consider in this scenario.

Alternatively, the requirement to pay spousal maintenance can be waived by entering into a binding financial agreement.

If you're unsure whether you are entitled to continue receiving spousal maintenance, or you wish to question your obligations as a payer, it's crucial to seek legal advice from a family lawyer.

Application for Spousal Maintenance & Time Limitations

Spousal Maintenance Applications (where the parties have been married) must be made within 12 months of your divorce becoming final.

Applications for de facto partner maintenance must be made within two years of the breakdown of your de facto relationship.

If you do not apply within these time limits, you will need special permission from the Court. This is not always granted.

It is a good idea to agree on a spousal maintenance arrangement when you are negotiating a property settlement so that all financial issues are sorted out at the same time. 

Contact Us

If you are currently going through a divorce or separation, it's a good idea to speak with an experienced family lawyer for legal advice pertaining to your individual circumstances.

For further information in relation to spousal maintenance and de facto maintenance after separation, or for assistance with applications for spousal maintenance, please contact our family lawyers for an initial consultation without delay.

ABKJ Lawyers have a long history of providing exceptional service to our clients across a broad range of legal issues. Our team is experienced with navigating the intricacies of all Family Law matters, including spousal maintenance claims, and are dedicated to ensuring your best interests are met.