Spousal Maintenance

The Family Law Act provides that husbands, wives or parties to a de-facto relationship are liable to maintain each other financially even after their marriage or relationship has ended.

The liability to maintain a former spouse arises only if one spouse cannot support themselves adequately and the other spouse is reasonably able to do so. The entitlement to spousal maintenance is not automatic

The other spouse’s inability to support themselves adequately must only be for the following reasons:

• Because they have the care and control of a child of the marriage or relationship who is under the age of 18 years;
• Because of their age or physical or mental incapacity to obtain gainful employment; or
• For any other adequate reason.

If one spouse makes an application to the Court for spousal maintenance, the Court is required to consider the following factors in determining whether to make such an order and how maintenance should be paid:

• the age and health of each spouse;
• the income, property and financial resources of each spouse and whether one spouse has the capacity to pay maintenance;
• whether either spouse has the care of a child of the marriage or relationship who is under 18 years of age;
• each spouse’s ability to gain employment and earn an income;
• what is a suitable standard of living for each spouse;
• whether the marriage or the relationship has affected either spouse’s ability to earn an income or gain employment; and
• any other factors the Court considers relevant.

There are time limits that apply when a former spouse wishes to make an application to the Court for spousal maintenance. For parties to a marriage, the application must be made within 12 months of the divorce becoming final and for parties to a de-facto relationship that has broken down, the application must be made within 2 years of the breakdown of the relationship. However, in certain situations, primarily of hardship, these time periods can be extended by the Court.

If an order is made by the Court requiring a former spouse to maintain the other spouse, this liability ends if the payee spouse remarries (unless there are special circumstances) and it may also be varied if the payee spouse’s financial situation improves, if there is a significant change in the care arrangements for the child of the marriage or relationship, or if one spouse’s earning capacity changes, for better or worse.

If you want to discuss your situation, or need help sorting out spousal maintenance, contact our family law team today on 1800 632 930.

This is general information only, and you should take specific legal advice on your circumstances.