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.
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
- 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  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.