Spousal Maintenance

28 November 2022 in Family and Divorce Law

After the end of a relationship, there are many new pressures that emerge while adjusting to a new lifestyle. The topic of finances can be particularly complex and emotional. Parties are now on a single income, or one party may have no means of supporting themselves at all. This is where the concept of “spousal maintenance” arises.

What is spousal maintenance?

Spousal maintenance (or de facto maintenance) is an agreement following the breakdown of a marriage or de facto relationship where one party will provide financial support to the other when they cannot support themselves.

Under the Family Law Act 1975, parties have an obligation to support or “maintain” one another, even after a separation or divorce. If one party’s personal income and assets are unable to cover their own reasonable expenses, the other is responsible for financially assisting them.

It is important to note this is different to child support and adult child maintenance.

How is it calculated?

The appropriate amount of spousal maintenance is based on the needs of the applicant and what the other party has the capacity to pay.

The court considers:

• Both party’s financial situations, including personal income and assets, as well as future earning abilities and expenses (or “liabilities”)
• The applicant’s age and health
• The applicant’s capacity to work and whether their ability to work in the past has been affected, such as when one party has lost work to raise a child
• What is a reasonable standard of living

How do I set up spousal maintenance?

Spousal maintenance can be settled both inside and outside the court. In both situations, a good family lawyer can be invaluable.

You can set up spousal payment:

1. At the same time as a property settlement (read more)
2. Using a binding financial agreement (BFA), if both parties reach an agreement
3. In Family Dispute Resolution (read more)
4. By filing an application to a court for a spousal maintenance order

Spousal maintenance orders

If no agreement can be made between parties, one can apply to a court – usually the Federal Circuit and Family Court of Australia (FCFCOA) – for a spousal maintenance order. This must be completed within the time limit. We recommend seeking legal advice prior to applying. A lawyer can also apply on your behalf, saving time, stress and energy.

Applicants must provide evidence of their circumstances and disclose documents before the FCFCOA can provide a hearing date. At the hearing, both parties will have the opportunity to present their case. Afterwards, the court will make a decision. All orders made by the court are legally binding.

Spousal maintenance may be reduced or ceased if the applicant enters a new de facto relationship or remarries.

Whether you are applying for spousal maintenance or are responding to orders, the family lawyers at Brander Smith McKnight can help you understand your rights and responsibilities and take the stress out of this difficult and emotional process.