Spousal Support And Maintenance

Spousal support, often called spousal maintenance, is an ongoing payment made after a divorce or upon the breakdown of a marriage when one spouse is unable to support themselves.

The Family Court Act of 1975 states: “A person has a responsibility to assist their former spouse or former de-facto partner if that person cannot meet their own reasonable expenses from their personal income or assets.”

Spousal maintenance is determined separately from divorce proceedings and can be applied for before or after the divorce has been finalised. Spousal support payments are determined on a case-by-case basis. A family court may order spousal support payments in several scenarios:

• If an individual has been the primary financial support for a family unit, whereby their ex-spouse or partner cannot obtain income due to a disability, age or health-related issues. Additionally, spousal support may be ordered if that ex-partner or spouse receives benefits from the state that are still insufficient to maintain a reasonable standard of living.

• If an individual resides in a household where their now ex-partner or spouse was the primary earner in the household, spousal support may be ordered for a period to allow for the upkeep of the household and payments of bills for long enough as to allow the other party to find a job to support themselves.

Several factors contribute to the amount that may be ordered to be paid by one partner as a spousal support payment. The court takes into consideration these factors for each of the parties involved:

• The age and health status of the involved parties.

• The income of both parties, particularly if one party’s income is considerably higher than the other.

• The ability of the requesting party to earn an income, and whether or not that ability has been hampered by the divorce or separation (whether due to mental health concerns such as fatigue or burnout), or the loss of a permanent dwelling.

• The reasonable expenses that the requesting party can expect the other party to pay for.

• In cases where children are involved, the Court will also consider the additional expenses involved in raising those children, who they live with primarily and the impact of the spousal support payments on the living expenses associated with raising children.

At AJB Stevens, we understand the intricacies of disentangling financial dependency on an ex-partner. We’re here to help you work out the financial side of things so that you can get back to focusing on yourself.

‘Alimony’ is a legal term, common in the United States, to refer to ongoing payments after the end of a marriage. It is determined on a state-by-state basis and is quite different from the Australian concept of spousal maintenance payments.

Yes, a similar form of financial support can be awarded on the breakdown of a de facto relationship.

In Australia, three kinds of spousal support applications can be made. Learning which one best suits your situation will help you save time and energy moving forward.

1. Urgent Maintenance
   Urgent maintenance is spousal support that is required immediately to help an ex-partner maintain their place of residence and pay for food, electricity, or other necessities of life that their former partner’s income had previously covered.

   Urgent maintenance payments become particularly important if there are children involved, who have been reliant upon the money earned by the ex-partner or spouse for their clothes, food and life’s necessities.

   Despite the implication of “urgent,” this type of support (nor any other type of spousal support) isn’t automatic nor guaranteed. The requesting party must make an application to the Court for any spousal support.

2. Interim Order for Maintenance
   This is an order made by the Court for maintenance to be paid in the interim between the date of the divorce or de facto separation, and when a final decision can be made by the Court concerning how much spousal support may be owed.

   Interim orders for maintenance are among the most common types of spousal support granted by the Courts to allow for the ex-partner or spouse to find a job to support themselves.

3. Final Order for Maintenance
   A final order for maintenance is a court-issued order for ongoing financial support by the ex-partner or spouse. There is no limit as to how long the support is to be rendered. If the individual has a physical disability that renders them unable to work in perpetuity and their needs are such that the state’s disability assistance payments are not enough to sustain them, it’s possible that the spousal maintenance could be paid in perpetuity, or for several years.

Many people believe that spousal support maintenance payments include their child support. They do not. Child support is a separate payment type that you may be entitled to from an ex-partner or spouse if their income (along with your own) played a significant role in the finances necessary to raise a child.

Spousal support maintenance is a separate payment from child support and must be applied for to the Family Court of Australia separately. Although most people make these applications at the same time, they are reviewed and adjudicated differently.

At AJB Stevens, we understand how important it is that you remain in a stable financial position following a divorce or dissolution of a long-term relationship. We’re committed to ensuring that you’re comfortable and prepared to request spousal support maintenance payments from an ex-partner to help you and/or your children in a time of financial hardship.

Spousal maintenance payments (or de facto maintenance payments, in the case of de facto partners), are not automatically given to one party. In the interests of achieving a ‘clean break’ for both parties it is only ordered for a fixed period of time.

The court will consider a range of factors before granting an order for maintenance, once eligibility for maintenance is confirmed. These factors include, but are not limited to:

• Age and health;
• Financial resources of both parties, both currently and looking into the future;
• The ability of both parties to work;
• A suitable standard of living;
• How the marriage impacted on the ability of one of the spouses to earn an income;
• The existence of children under 18 or disabled adult children who need support.

A similar range of factors are considered in the case of de facto maintenance payments under section 90SF of the Family Law Act 1975.

An application to the court must be made within 12 months of a divorce being finalised for spousal maintenance. For de facto relationships, the application must be made within 2 years of the breakdown of the relationship. Applications can be made to the court outside of these time limits in exceptional circumstances.

Orders for maintenance can be urgent, interim and final in nature, depending on the needs of the applicant.

As an alternative to applying to the court, both partners could come to an agreement about maintenance between them.

For more information see How do I apply for property and financial orders?

In general, specific criteria must be met to be eligible for spousal maintenance payments. Unlike property settlement payments, which are inherently given, spousal maintenance is not.

However, as spousal maintenance is awarded on a case-by-case basis, the Court takes your specific circumstances into account whenever a petition for spousal maintenance is made. The factors that may be taken into account in total or in-part by the Court include, but are not limited to:

• The age and health of the parties.
• Whether there are children under the age of 18, and whom is their primary custodian.
• The financial resources available to each party, including shared property and income.
• Each party’s eligibility for a pension, allowance or benefit from the State.
• The rights of creditors.
• The terms of any property settlement.
• The terms of any binding financial, such as loan payments on family vehicles, etc.
• If either party has to support other persons in their new household or living arrangement.

You may also be eligible for spousal maintenance if your ex-partner was considered “the breadwinner” in the family and you have been out of the workforce for a significant period of time, whether raising a family, or not.

You must establish that you would be otherwise unable to support yourself without the financial support of your ex-partner due to the relationship dynamics. Regardless of whether you were married or not, you are still potentially eligible for spousal support, under various Family Law Act statutes that cover de facto relationships and spousal support.

Is There a Time Limit for Spousal Support Applications? It is generally accepted that there are 12 months from the date of the divorce where you can apply for spousal support. That period is 24 months for the dissolution of de facto relationships.

Is There a Calculator for Spousal Support Applications? Not really. There are child support calculators that can be found online, however these are unreliable and would not be admissible in court as evidence of how much one should receive in spousal support. The best way to calculate how much spousal support you might be owed is to sit down and work out the following financial particulars:

• What is your taxable income?
• Are you eligible to receive, or already receiving, any child support?
• Add up what your reasonable weekly or monthly expenses are.
• Confirm your income tax with accountant.
• Prepare a detailed budget for yourself and your dependents over the 6 to 12 months.
• Ask the other party to also prepare a budget in a similar fashion.

Once you have these numbers available to you, consult with AJB Stevens’ lawyers to calculate exactly how much you be eligible to receive in spousal support applications.

There is no exact formula used to calculate spousal maintenance. The court will make its decision based on the income and assets of the parties and reasonable expenses.

Your lawyer can help you with the information you need to provide, such as income information and a proposed budget, to support your case in court.

If you are unable to agree with your former partner on an amount for ongoing maintenance, and you are within established time limits, you may make an application to the Family Court.

For more information see How do I apply for property and financial orders?

Spousal support is an ongoing payment to a former spouse to recognise their need for support, while child support is an ongoing payment based on the needs of the child.

Yes, the court will take into account any present or future liability for child support payments when calculating spousal maintenance payments.

It is recommended. Only a family lawyer has up-to-date information on the amounts that people in your situation have been required to pay.

No. You should first try and come to an agreement with your former spouse or partner. If you are unable to do so, only then should you apply to the court.

An application for maintenance must be made within 12 months of the finalisation of a divorce, and within 2 years of the breakdown of a de facto relationship.

The court will consider a range of factors before granting an order for maintenance including, but not limited to:

• Age and health;
• Financial resources of both parties, both currently and looking into the future;
• The ability of both parties to work;
• A suitable standard of living;
• How the marriage impacted on the ability of one of the spouses to earn an income;
• The existence of children under 18 or disabled adult children who need support.

You may be wondering if you can be granted spousal maintenance applications in perpetuity due to a permanent disability or other financial destitution as a result of the breakdown of your de facto relationship or marriage.

It is extremely unlikely for a judge to grant spousal maintenance in perpetuity, except perhaps in the event of an elderly couple whose relationship breaks down and one party is granted spousal support, as they are both in the latter stages of life, or both suffering from an eventually fatal illness, or other special circumstance.

In general, a few criteria could cause your spousal maintenance payments to cease. These are as follows:

• A significant change in your personal financial circumstances. For example, receipt of a large inheritance, or a lottery win.
• The person paying you spousal maintenance passes away.
• You enter a new de facto relationship or re-marry and your financial situation improves.
• Your financial situation improves to the point where you no longer require the financial support provided by the ex-partner or spouse.
• Your dependent children do not require financial assistance from you in the same way; they move out and go off to post-secondary institutions or find work.

Remember that the Court has the power to suspend, vary, or discharge the other party of their responsibilities if one or more of the above conditions are met (and the other party makes that petition to the Court), or there were found to be inaccuracies in the reporting of your financial circumstances that lead to the order in the first place.

You must report any change in financial circumstances to the Court, to allow them to reassess your needs for spousal support. Failure to do is considered fraud and is a prosecutable offence under Australian law.

If you do not wish to pursue court-mandated spousal support, you can avoid it by using a Financial Agreement that is agreed upon by both parties. However, unlike a spousal maintenance order, a financial agreement is not enforceable.

AJB Stevens understands that any immediate loss of income through the dissolution of a marriage or the sudden termination of a de facto relationship can be a hugely stressful experience for you. It can have knock-on effects for any children born of the marriage or de facto relationship. That’s why we’re here to ensure that you have a spousal support order that encapsulates all of your needs, for as long as you need them.

If one party wishes to apply to the court, and they meet the legal requirements for spousal maintenance, it will be payable. There is no ‘getting out of it’.

However, if you can come to an agreement with your former spouse or de facto partner on maintenance payments, ideally at the time of property separation, this is preferable.

If you were not married to your ex-partner, but were in a de facto relationship, then you may still qualify for spousal maintenance. Several different pieces of legislation cover this. The first is the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. This piece of legislation made all couples equal in the view of Family Law courts, regardless of whether they were married or in a de facto relationship.

This paved the way for unmarried, separated couples that had been in a de facto relationship to begin applications for spousal maintenance.

In Queensland, the Family Law Act 1975, section 90SF decrees that a spouse may have the right to obtain spousal support after the separation from a de facto relationship. However, before the de facto ex-spouse can claim spousal maintenance, they must satisfy one of the following criteria, per the 90SB Family Law Act:

• The claimant and their former partner were in a recognised de facto relationship for more than two years.
• There is a child born of the relationship.
• The applicant has made a substantial financial contribution during the relationship, and for them not to be eligible for spousal sponsorship represents a grave injustice.
• The relationship was registered with territorial or state authorities.

Additionally, the Family Law Act, section 4AA defines a de facto relationship as one where:

• The persons are not legally married to each other.
• The persons are not related by family
• With regard to all circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

When children are involved, the Child Support Registration and Collection Act 1988 covers the liability of a party in a de facto relationship, making it so that “a party to a de facto relationship to pay a periodic amount for the maintenance of the other party to the de facto relationship is a registrable maintenance liability.”

The amendment to the CSRC Act 1988 closed a loophole being exploited by individuals who were in de facto relationships, but not paying the necessary spousal supports due to being unmarried, despite the presence of children in the relationship.

At AJB Stevens, we want you to know that although you have only been in a relationship with a person from whom you are now separated, you still could be eligible for spousal maintenance payments, particularly if that individual and yourself had a child of the relationship, or you lived under and made financial contributions to the maintenance of a household.