Spousal Maintenance

Spousal maintenance is defined by the Family Court of Australia as ‘financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves’. These payments put the supported partner in a position where they are able to provide for themselves financially moving forward.

The key question the court will ask when considering a spousal maintenance order is whether a party is unable to support themselves adequately. Other factors include:

- The age and health of the parties;
- The income, property and financial resources of each party;
- The physical and mental capacity of each party in relation to their ability to gain employment;
- Whether each party has care of a child of the marriage that is under the age of 18;
- Commitments of each party that are necessary to enable the party to support themselves and a child as well as any other person they have the duty to financially maintain;
- The eligibility of each party for a pension, allowance or benefit;
- The standard of living of the parties;
- The extent to which the spousal maintenance payment would increase the earning capacity of that party by enabling them to undertake a course of education or training;
- The extent to which the party receiving payments has contributed to the income, earning capacity, property and financial resources of the other party;
- The duration of the marriage and the extent to which it has affected the earning capacity of the party providing the spousal maintenance; and - If either party is cohabitating with another person and the financial circumstances relating to the cohabitation.

It is important to seek legal advice to clarify which factors will apply to your individual situation.

There are two forms of spousal maintenance, periodic and lump sum. Periodic spousal maintenance requires weekly, monthly or yearly payments. Lump sum spousal maintenance involves a lump sum being paid to the individual receiving the maintenance. The court can also make an order requiring the transfer of property or assets to a person as a form of spousal maintenance.

To apply for spousal maintenance there are certain time limits in which an application should be made. For married spouses, an application must be made within one year of the date a divorce order is made. For de facto partners, an application must be made within two years of the date of the separation. The court may give permission for an individual to apply for spousal maintenance out of the time limit if failure to make a spousal maintenance order would result in hardship to a child or the individual applying.

Periodic spousal maintenance is payments made for a fixed period of time, for example three years, however spousal maintenance orders can be made for payment for life in rare circumstances. Spousal maintenance payments can continue even after final property orders have been made.

A spousal maintenance order will end once the fixed period has lapsed, or when one of the following occurs:

- Death of the individual making the payment;
- Death of the individual receiving the payment; or
- Remarriage of the individual receiving the payment.