Spousal maintenance is financial support paid by a party to a marriage or de facto relationship to the other party where that party cannot adequately support themselves.
De facto maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.
The Family Law Act 1975 imposes a duty on former spouses and former domestic partners to financially assist their spouse, former spouse or former de facto partner if that person cannot meet their own reasonable expenses from their personal income or assets; and where the respondent spouse has the capacity to make periodic or lump sum payments of spousal maintenance.
The primary purpose of maintenance is to adjust for any disparity between the income or earning capacity of parties based on their respective needs. It is usually for a relatively short period after separation, approximately two to three years. This period of time enables the recipient to retrain, enter the workforce or generally re-establish themselves.
If you were married, the Family Law Act 1975 imposes a duty on both you and your former spouse to financially support one another to enable the financially weaker party to maintain a reasonable standard of living.
If you were in a de facto relationship, you can apply for de facto partner maintenance if you and your former partner lived together but never married and:
- You lived together as a couple for at least two years;
- You lived together as a couple for less than two years and you had a child together.
Parties to a marriage which has broken down must apply to the Court for spousal maintenance within 12 months of a divorce being granted. Parties to a de facto relationship must apply to the Court for spousal maintenance within 2 years of separation.
If the time limit passes, an application for spousal maintenance can only be made with the consent of the other party, or with leave of the Court, in considering whether to grant leave the Court must be satisfied that:
- The party making the application (the applicant), or a child of the relationship, will endure hardship if leave is not granted;
- At the end of the limitation period the circumstances of the applicant were such that they would have ben unable to support themselves without an income-tested pension or benefit.
The first step in assessing an application for spousal maintenance requires evidence that a party to a marriage of de facto relationship which has broken down cannot adequately support themselves whether by reason of:
- having the care of a child to the marriage or relationship who is under the age of 18 years;
- age or physical or mental incapacity for employment;
- any other adequate reason.
Satisfying Step 1 requires the Applicant to provide evidence of their income, expenses and liabilities.
Step 2 requires the Court to consider the capacity to the respondent to make payments of spousal maintenance to the other party. Satisfying Step 2 requires the Respondent to provide evidence of their income, expenses, liabilities and financial resources.
Mindful that there is no requirement to make an order for spousal maintenance which maintains the applicant’s pre-separation standard of living, the Court will take account of the following factors and, if appropriate, grant an order for the payment of spousal maintenance:
- The income, expenses, liabilities and financial resources of both parties;
- The age and state of health of both parties;
- The length of the marriage and the financial and non-financial contributions made by each party;
- The arrangements for any children of the marriage;
- Any other relevant factor.
The Court has power to grant orders for urgent maintenance where it appears there is an immediate need of financial assistance, but where it is not practicable to determine precisely what order should be made. In these circumstances, the Court may make an order for such periodic sums as it considers reasonable.
At Empower Family Law & Mediation we have successfully brought and defended claims for spousal maintenance. We have advised parties on the risks and advantages to them of bringing an application for spousal maintenance, and we have assisted respondents to protect their asset base and income by minimising the impact of a spousal maintenance application.
If you are in need of financial support from your ex-partner, or you have received either a request from your former spouse’s lawyer for spousal maintenance or have been served an application for spousal maintenance, you should contact us immediately for advice.
From your very first conference with us you will know where you stand, what your options are and what to expect.
That is why your first 30-minute consultation with us is FREE.