Are you entitled to spousal maintenance?

Could you be entitled to maintenance for yourself and not just for your children?

Spousal Maintenance is the provision of ongoing financial support for a husband or wife. It is separate from child support.

Under the Family Law Act, both parties to a marriage or defacto relationship have a duty to support and maintain the other after separation or divorce. The level of support will depend on the following:

  • One party being unable to adequately meet their own reasonable needs; and
  • The other spouse having the capacity to pay.

In deciding whether a spousal maintenance order is appropriate, the judicial officer will decide on what is just and equitable based on the following information:

  • Each party’s income, property, financial resources and debts;
  • Each party’s age and health in order to determine their future requirements;
  • Each party’s ability to work and earn money and whether this ability has been affected by the relationship/marriage;
  • What is considered to be a suitable standard of living for each party;
  • With whom the children reside.

Spousal maintenance is not automatic and it is often considered as part of an overall settlement of financial matters.

Spousal maintenance may be capitalised and paid now which will provide an overall reduction in the amount payable.

Spousal maintenance is usually for a limited period whilst the party with the need for spousal maintenance is able to retrain and maximise their earning capacity or until another event such as remarriage, cohabitation etc.

It is rare for spousal maintenance orders to be made separately to property settlement however it may be made separately so long as it is made within 12 months of the Divorce Order or within 24 months of a defacto relationship ending. If an application is made after this time special permission from the Court is required and is not always granted.

Before filing an application for spousal maintenance orders both parties are ordered to undergo dispute resolution. However in cases involving urgency, child abuse, family violence or fraud the Court may accept that it is not appropriate or possible for dispute resolution to take place.

Author: Amanda Smith