Key takeaways
- What is spousal maintenance? – Financial support is provided by one spouse to another after divorce or separation, considering income, needs, and capacity to pay.
- When will I receive or pay maintenance? – Both former partners may have a duty to support one another if the other cannot meet expenses from personal assets or income.
- What does the court think about when making this decision? – The court evaluates both parties’ needs and capacity to pay, considering age, health, income, and living standards.
- Urgent Spousal Maintenance – The court can provide immediate support, often for a limited time.
- Interim Spousal Maintenance – Ordered before finalisation, requires evidence from both parties.
- Lump Sum Maintenance – One-time payment option, useful for inconsistent periodic payments.
- Time Limits for Spousal Maintenance – One year post-divorce for married couples; two years post-relationship breakdown for de facto relationships.
- Duration of Spousal Maintenance – Payments last based on need and the paying party’s capacity, per court orders or agreements.
- Who Needs Spousal Maintenance – Caregivers and relocating individuals often require support due to diminished earning potential.
Spousal maintenance in Australia is a legal action resulting from divorce or separation. The purpose of this payment is for one spouse to provide financial support to the other after the divorce or separation. Spousal maintenance is based on income, earning capacity, and each partner’s financial needs.
What is spousal maintenance?
Spousal maintenance, also called alimony, is a payment that helps spouses support each other after a divorce or at the end of a de facto relationship. Maintenance helps parents support their dependent children, and spouses or civil partners support each other to the extent of their financial ability.
If you are cohabiting and financially independent, you can apply for a maintenance order if the relationship ends. However, a spouse who has since remarried cannot seek maintenance for themselves, though they can seek it for dependent children.
Then there’s de facto maintenance. One party pays financial support to their former de facto partner when they cannot adequately support themselves.
When will I receive or pay maintenance?
According to the Family Law Act 1975, you are responsible for financially assisting your former spouse or de facto partner if they cannot meet their own expenses from their personal assets or income.
That said, if maintenance is necessary, both parties have an equal duty to support or maintain each other as far as they are able to. What’s more, this obligation continues even after separation and divorce. Still, this support depends on what the other party can afford.
If you want to make sure you get a fair outcome in your divorce or separation, in the best interests of your children, get legal advice from a qualified family lawyer. If you’re worried about how much a lawyer might cost, contact JustFund for flexible funding options to help pay for legal advice.
What does the court think about when making this decision?
When considering spousal maintenance, the Court thinks about both an applicant’s needs and the respondent’s capacity to pay when it makes the decision. For both former partners, the Court considers your age, health, income, property, and financial resources. They then think about your ability to work, what a suitable standard of living is, and whether the marriage affected your ability to earn.
The Court also considers who the children involved (those under 18 years of age and adult children who are disabled) live with.
What types of spousal maintenance arrangements are there?
In Australia, there are various types of spousal maintenance.
Urgent
The first is urgent spousal maintenance. The Court may order this spousal maintenance if one party urgently needs financial support, such as caring for children. The Court can do this without requiring a detailed enquiry into either party’s financial circumstances. However, urgent spousal maintenance is usually only ordered for a limited period until a final maintenance or interim order is made.
Interim
The Court may order interim spousal maintenance when the need is less urgent or less immediate, when maintenance is needed before the parties’ matter finalisation. In this situation, the Court needs sufficient evidence from both parties, usually an Affidavit and Financial Statement. They will also conduct an interim hearing before deciding on interim maintenance. The interim spouse maintenance order will then apply either for the period the Court stipulates or until the Court discharges a further order.
Lump sum
Another type of spousal maintenance is lump sum or periodic payments. Usually, you pay spousal maintenance periodically. However, lump sum maintenance is the more appropriate option in some circumstances. One situation where lump sum maintenance may be more suitable is when the paying party has not been consistent with periodic payments or the receiving party has had difficulty enforcing the payments. A lump sum is also a good option when the receiving party sets up a new home.
How to apply for spousal maintenance
If you want to apply for spousal maintenance, you should know that certain time limits apply. These are the same time limits that apply to property settlement applications.
If you have been or are currently married, you have one year from the date of your Divorce Order to apply for spousal maintenance to the Court.
Alternatively, if you have been in a de facto relationship, you can apply to the Court for spousal maintenance for up to two years from the breakdown of your relationship.
Applying for spousal maintenance outside of these time limits is still possible. However, you can only do this in specific circumstances.
How long can spousal maintenance last?
There is no set period for spousal maintenance payments to last. Like alimony or child support, spousal maintenance payments last as long as the receiving party needs and are also based on the paying party’s capacity. That being said, liability to pay spousal maintenance lasts as long as the Court’s orders or an enforceable agreement stipulates.
Who needs spousal maintenance?
Anyone can apply for spousal maintenance. However, some people are more likely to need spousal maintenance.
Caregiver
One group of people who may need spousal maintenance is parents who care for children. After all, when a couple has children, one parent is likely to reduce their employment to care for the children, while needing their other parent’s income to meet their living expenses. However, this also means that the working parent builds up their capacity to earn through promotions and experience, while the caring parent’s earning capacity diminishes. If you have been a full-time carer and are worried about how to get a loan to cover legal fees, please contact JustFund, who have flexible funding options for people like you.
Relocation
Spousal maintenance is also essential when a person has relocated from another country to pursue their relationship with someone living in Australia, before the relationship’s breakup. Whether due to language barriers or qualifications not being recognised, the relocating spouse may be less able to get work after a relationship breakup. Because of this, the relocating party may need spousal maintenance until they complete further education or gain more experience.
Can people stop receiving spousal maintenance?
If the receiving party gets married to another person, they will generally not be entitled to receive spousal maintenance. This also happens if the receiving party passes away.
If the receiving party starts a new relationship, the Court will examine their specific circumstances to determine whether spousal maintenance should still be payable.
At JustFund, we understand how complicated spousal maintenance in divorce can be. That’s why it’s important to get the right legal advice, and why we give funding to help you explore the options that best suit you and your circumstances. Contact us by email at enquiries@justfund.com.au, phone 1300644980, or use our contact form.
