On the breakdown of a marriage, it is essential to sort out the financial matters as quickly as possible. Primarily, this means coming to an agreement about how the property of the relationship is to be separated and distributed between the spouses. But it also involves working out whether there should be any ongoing payments from one of the spouses/former spouses to the other. These are known as ‘spousal maintenance’ payments.
In this article, we explain who can apply to the court to receive these payments, and the criteria used by the court for making orders for spousal maintenance.
The rules that apply to spousal maintenance are set out in Commonwealth legislation (the Family Law Act 1975), so they apply Australia-wide.
1. What is spousal maintenance?
Spousal maintenance is a form of ongoing financial support that one spouse may be required to provide to another, following the breakdown of a marriage. A similar concept, de facto partner maintenance, may apply after the breakdown of a de facto relationship.
2. Is spousal maintenance the same as spousal support?
‘Spousal maintenance’ is the term used in the Family Law Act 1975, to refer to the ongoing financial support payments owed from one former spouse to another. Sometimes this is casually referred to as ‘spousal support’. At other times, ‘spousal support’ is a term used to refer to the legal and moral obligations owed by spouses to each other
3. Who qualifies for spousal maintenance?
At the breakdown of a marriage, neither spouse has an automatic right to spousal maintenance. A spouse or former spouse may be eligible for maintenance where they are unable to support themselves due to:
· The need to care for a child of the marriage;
· Age or incapacity; or,
· Any other reason.
In making a decision about spousal maintenance, the court will consider a range of factors, including, but not limited to:
· the age and health of the applicant;
· the financial resources possessed by both parties. This is assessed both at the point-in-time of application, and looking towards the future;
· the ability of both parties to work;
· a suitable standard of living;
· the impact of the marriage on the ability of one of the spouses to earn an income;
· the existence of children under 18, or any disabled adult children in need of support.
Similar criteria apply for de facto partner maintenance.
4. How long can you claim spousal support?
There is no specific time limit that the court must apply to spousal maintenance payments. However, the court will only apply them for a finite period of time – they do not apply for life. The court is able to discharge, suspend or vary the maintenance order, as the circumstances of either party change.
5. What happens if I remarry?
A court order for spousal maintenance will automatically end under certain circumstances, including where one party dies or re-marries. Note, however, that there are some exceptions where spousal maintenance might still be required, even after remarriage.
6. Do time limits apply?
Spousal maintenance applications must be made to the court within 12 months of a divorce being finalised. Where a de facto relationship has broken down, an application must be made within 2 years of the breakdown.
7. Do I need to apply to the court to get spousal maintenance or support payments?
No, not at first. It is preferable that both spouses, or former spouses, agree between themselves on any ongoing payments. It can be helpful to use the services of a family dispute specialist, or a mediator, to come to this agreement. Once agreed, both parties can sign a binding financial agreement. Alternatively, upon agreement, both parties could apply to the court for a ‘consent order’, to give legal effect to the agreement.
8. Do child support payments impact on spousal maintenance?
Yes. The court considers any child financial support payments when deciding on the amount of any ongoing spousal maintenance payments.
For further information on spousal maintenance, see the website of the Family Court of Australia.