Spousal maintenance is the financial support given by one spouse/partner to a former spouse in circumstances where they are not able to support themselves due to factors such as age, illness or caring responsibilities.

Spousal maintenance is not child support or adult child maintenance. These payments are made to financially support the children of a marriage or relationship.

Spousal maintenance is not automatic. If it is not to be paid by agreement between the parties, then a Court application is issued where two matters have to be established, namely:

  1. one party is unable to support themselves financially; and
  2. the former partner has the financial means to be able to support them financially.

Therefore, to be successful with an application for spousal maintenance, one spouse has to show the “need” for financial support and demonstrate that the other spouse has the ability to pay. A person who makes a lifestyle decision not to work or to work only part-time would not be successful with an application for spousal maintenance unless they could point to one or more of the factors mentioned below.

Applying for spousal maintenance

The application is accompanied by a detailed form that itemises weekly spending by the spouse who is seeking financial support. The form will need to show that there is a shortfall in funding to meet living expenses.

The Court will, in determining whether maintenance should be paid, give consideration to the following factors:

  • The income expenses and financial resources of each spouse.
  • The age and health of each spouse and whether each spouse has the ability to earn an income from employment.
  • The care arrangements for any children of the marriage. Care arrangements may affect someone’s ability to work or work full time.
  • The standard of living experienced by the party which is reasonable in the circumstances.
  • The length of the marriage, contributions made by each spouse to the marriage and whether the length of marriage has affected one person’s ability to earn an income. For example, the mother may not have worked for many years and, therefore, not have the skills to obtain employment without training.
  • Whether spousal maintenance may assist a person in undertaking training or re-skilling.
  • Any other relevant factors.

When should an application be made?

An application for spousal maintenance can be made after separation and leading up to the making of final property orders.

If the parties have divorced, any application has to be made within 12 months of the divorce order taking effect.

If a party needs to apply for spousal maintenance out of time, then you first have to obtain leave of the Court to explain why the application was not made within the relevant time period.

With a de facto relationship, any application for de facto maintenance has to be made within two years of the breakdown of the de facto relationship, but again, if you are out of time, then you have to seek the leave of the Court explaining why the application was not issued within time. 

If a Court has ordered that your marriage was a nullity, that is void, an application can still be made for spousal maintenance, but it has to be made within 12 months of the decree of nullity being made.

How is spousal maintenance paid, and for how long?

Spousal maintenance payments can be made:

  • as a lump sum or periodic payments, depending on the circumstances of the case;
  • it can be made in a period leading up to final property orders being made;
  • it may be paid for short periods of time to enable the spouse to become financially self-sufficient; or
  • it can be paid for more extended periods or even indefinitely if, for various reasons, one spouse cannot become financially self-sufficient due to such things as health and age.

The payments can be cash payments or payments of expenses for daily living costs such as mortgage instalments or payments of rates, utilities, health care costs and other household expenses.

Alternatively, a lump sum final cash payment can be made as part of a property settlement.

If the spouse who has been receiving spousal maintenance remarries, then they are no longer entitled to spousal maintenance. If the de facto partner commences a new de facto relationship, a court will consider the financial relationship that exists to determine whether that party can now support themselves.

Binding financial agreements (BFA) and spousal maintenance

A widely held view is that you can avoid paying spousal maintenance if you resolve a financial settlement with a BFA. Such agreements can be made prior to, during or after a marriage or relationship has ended. It allows parties to devise their own financial split, which, if done properly, will oust the jurisdiction of the Family Court to determine how property should be divided between the parties.

Spousal Maintenance can be included in a BFA with the parties stating that neither of them will make a claim for spousal maintenance against the other. It is usually accompanied by a provision in the BFA to pay, by way of spousal maintenance, a small sum (with the monetary figure being stipulated) to each other. 

However, the Family Law Act does state that the provision can be void if the Court is satisfied that when the BFA came into effect i.e. at the time of separation, and taking the terms and effect of the BFA into consideration the party is not able to support themselves without an income tested pension, allowance or benefit. A court would then make an order for spousal maintenance.

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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Joanne Cliff

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