Spousal Maintenance: Are you Entitled?

Spousal Maintenance

Taylor joined the family law and litigation team at Unified Lawyers in 2019. Taylor has completed a Bachelor of Laws and Bachelor of Arts in Communication (Social and Political Science)...

What is Spousal Maintenance?

Spousal Maintenance is financial support paid by a party to a marriage to their former spouse in circumstances where that spouse is unable to properly support themselves.

Similarly, a De facto partner maintenance is financial support paid by a party to a de facto relationship to their former de facto partner in circumstances where that former de facto partner is unable to adequately support themselves.

Under the Family Law Act 1975 , a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

In the event of spousal separation, if either spouse is experiencing distressing financial difficulties, they may file a “spousal maintenance” application, which are dealt with by either the Family Court or the Federal Circuit Court pursuant to the Family Law Act 1975.

Notably, the Family Law Act is inclusive of individuals both in heterosexual and homosexual marital (s.74) and de facto partnerships (s.90SE), given that they satisfy the requirements. 

Determining factors?

The Court will essentially consider whether the applicant is not able to meet their reasonable needs and correspondingly, whether the respondent has the capacity to contribute to those needs. In that regard, in determining the eligibility of the applicant, the court will consider the following factors, (this is a non-exhaustive list)

  • The applicant’s needs + the respondent’s ability to pay[1]
  • applicant’s age
  • applicant’s health status
  • capacity to work
  • applicant’s individual and combined income + assets
  • the applicant’s earning capacity (relative to their physical and mental states)
  • whether the applicant has care/control of the child of the relationship
  • the reasonableness of the standard of living of the applicant
  • whether and to what extent the maintenance would contribute to the applicant’s income, earning capacity etc..

Period of Spousal Maintenance?

If the court determines that this application is successful, then these payments will either be made as regular (periodic) or ‘lump sum’ (at once) payments.

When Can I File for Spousal Maintenance?

An application for spousal maintenance can usually be made any time after the parties have separated. However, in the event of a divorce, this application must be made within 12 months of the divorce order (unless granted leave). Further, in the context of a de facto relationship, the application must be made within 2 years of separating (no extension is provided for).

What if I just claimed an inheritance?

Prior to filing an application for spousal maintenance, it is imperative to consider whether you have access to any financial resources: an estate, a trust, as that is likely to disbar you from being viewed as financially incapable of supporting yourself.

Further, as the High Court affirmed in the case of Hall v Hall [2016] HCA 23, if an applicant has an ‘interest’ in an asset/estate, the fact that the applicant hasn’t requested or sought the financial benefits from that ‘interest’ does not weigh in favour of the applicant, given that he/she could request it.

Need help with spousal maintenance?

If you or a loved one requires some legal guidance about spousal maintenance, please contact us. We will arrange for a specialised family lawyer to provide you with a free consultation to help alleviate some of your stress and guide you down the correct path.

Taylor joined the family law and litigation team at Unified Lawyers in 2019. Taylor has completed a Bachelor of Laws and Bachelor of Arts in Communication (Social and Political Science) at the University of Technology Sydney and holds a Graduate Diploma of Professional Legal Practice.