Spousal Maintenance in Australia: 2021 Expert Guide
Learn more about spousal maintenance with our comprehensive expert guide
Has your relationship broken down? Are you facing separation or divorce?
Your family law issues may present some significant challenges. For example, if you have children, you may be negotiating parenting arrangements and child support. You may need to apply for divorce, or perhaps you’re considering separating your property and finances.
For many, another vital part of this process is financial support, often as spousal maintenance. This extensive guide will step you through spousal maintenance in Australia, including frequently asked questions presented in a helpful Q&A format.
Table of contents
- Learn more about spousal maintenance with our comprehensive expert guide
- Table of contents
- What is spousal maintenance?
- Who is entitled to spousal maintenance?
- Spousal maintenance and marriage
- Spousal maintenance and de facto relationships
- How much is spousal maintenance? How is it calculated?
- Spousal maintenance and property settlements
- Court-ordered spousal maintenance
- How is spousal maintenance calculated?
- How to apply for spousal maintenance
- Time limit for application
- More FAQs about spousal maintenance
- What’s the difference between spousal maintenance and alimony?
- Do I need a lawyer to apply for spousal maintenance?
- Is fault taken into consideration?
- Is it possible to avoid paying spousal maintenance?
- Can I change the amount of spousal maintenance?
- Takeaway points
What is spousal maintenance?
“Spousal maintenance is financial support paid by one spouse to the other spouse after the breakdown of their relationship.”Dominic Nguyen, Solicitor Director, Unified Lawyers
Spousal maintenance is usually ordered by a court however can also be reached by agreement between the parties. The aim is to ensure appropriate financial support for the party with the lowest income or the lesser ability to earn a future income.
Appropriate support depends on many factors. It’s different for everyone.
Who is entitled to spousal maintenance?
Australian family laws set out the criteria for a court to consider when working out what should be paid (if anything).
The party applying for spousal maintenance is known as the applicant. The other party is known as the respondent (because they are responding to the application).
You can apply for spousal maintenance if:
- You and your spouse are separated but still married
- You and your former spouse were married but divorced less than 12 months before applying for spousal maintenance
- You and your former partner were in a de facto relationship, subject to certain conditions
Spousal maintenance and marriage
If you are or were married, the law says that both you and your former spouse have a duty to financially support each other and maintain a reasonable standard of living.
It’s essential to be clear about your date of separation. If you’re not sure or disagree about the date, you may need legal advice.
Spousal maintenance and de facto relationships
You can apply for de facto partner maintenance, which is similar to spousal maintenance, if you and your former partner lived together but never married, so long as you meet one of the following criteria:
- You lived together as a couple for at least two years; or
- You lived together as a couple for less than two years, and you had at least one child together
You must apply for de facto partner maintenance within two years of separation, so it’s crucial that you know your separation date.
How much is spousal maintenance? How is it calculated?
If you or your ex-partner apply for spousal maintenance, a court will consider many things to work out whether it’s appropriate and how much should be paid.
It will look at the financial situations of you and your former partner. If there’s a significant difference, it will consider the reasons. For example, taking time off work or reduced work hours due to caring responsibilities.
Your spousal maintenance application must be reasonable. You need to be realistic about the amount you need and what the respondent can afford to pay. A court will consider your financial situations, including assets, future earning abilities and expenses (also known as liabilities).
Spousal maintenance and property settlements
There are different ways to set up spousal maintenance. Sometimes, it’s possible to agree with your former partner without going to court.
Financial settlements are also known as property settlements. They aim to settle all financial and property issues between the parties. Although spousal maintenance and financial settlements are different, many parties find it convenient to negotiate spousal maintenance when working through the property settlement.
You can negotiate with help from:
- Your lawyer (if you have engaged one)
- Free legal advice, such as a community legal service
- Family dispute resolution
If you and your former partner can agree, you may be able to make a binding financial agreement (BFA). A BFA operates and is enforced like a contract. You can also agree to:
- Ask a court to make consent orders based on the BFA, for extra legal protection
- Payment terms for spousal maintenance, for example, a lump sum or regular payments
Court-ordered spousal maintenance
If you and your ex-partner can’t agree on spousal maintenance or don’t wish to negotiate an agreement, you can apply to a court for spousal maintenance orders.
For more information, see How to apply for spousal maintenance below.
The court will consider many different factors and may order spousal maintenance as a lump sum or by instalments. It can say when the payments should end, for example:
- If you or your former partner remarry
- If you or your former partner start a new de facto relationship
- If the applicant gets a job
- On a specific date
- If you or your former partner dies
It can also order that maintenance payments are collected by the Department of Human Services (DHS) and paid to the applicant.
How is spousal maintenance calculated?
There’s no one-size-fits-all approach to calculating maintenance payments. Many factors and issues are considered, including the present-day and future needs of both parties.
It’s a process of careful balancing. If you apply to a court for spousal maintenance, it will consider how circumstances impact both parties, including:
- Care for dependents (for example, children and elderly relatives)
- Child support payments
- Entitlement to Centrelink payments
- Standards of living
- Financial and non-financial contributions to the relationship
- Earning potential
- The need for retraining
- New relationships
- Any BFA or property settlement
You can seek legal advice from a private lawyer or community legal service.
How to apply for spousal maintenance
Before applying, we recommend seeking independent legal advice from a private lawyer or community legal service. For some financial orders, you must have independent legal advice before applying to court.
The Federal Circuit Court (FCC) usually conducts spousal maintenance hearings. It can make an order after a hearing or if both parties ask for consent orders (meaning that everyone agrees to the orders).
To apply for spousal maintenance, you need to complete and file an application form in the FCC (or your lawyer can do this for you). The FCC website has some general information about making an application. You can also file your application online.
You must apply within the time limit, otherwise you may not be allowed to apply at all.
The FCC will charge a fee for filing your application. You may be able to negotiate to share the cost with your former partner. Sometimes, the Court may decide not to charge the fee. See the FCC website for more information about filing fees.
The FCC may then set a hearing date (or it may do this later in the process). It will give deadlines for things to be done in the lead-up to the hearing, for example, disclosure of documents.
You’ll also need to provide evidence of your:
- Income, bills and debts
- Caring obligations for any dependents
- Lifestyle needs
You must give a copy of the application to the respondent, following special rules. This is known as service. The rules aim to ensure the respondent has fair notice of the application and the chance to respond. If you have a lawyer, they will arrange service.
The FCC’s process depends on many things, including:
- The complexity of the issues
- Whether either party needs to locate any documents
- Whether other issues first need to be resolved
- The level of cooperation between the parties
The FCC will schedule a hearing, at which you will have a chance to put forward everything you would like the Court to consider. Your former partner will have the same opportunity. After hearing your application and considering all the evidence, the FCC will decide whether to make spousal maintenance orders. Any orders are legally binding, and all parties must obey them.
Time limit for application
There are strict time limits for applying. If late, you may lose the chance to secure spousal maintenance.
If you were married, you must apply for spousal maintenance within 12 months of your divorce order.
If you were in a de facto relationship, you must apply for de facto partner maintenance within two years of separation.
More FAQs about spousal maintenance
What’s the difference between spousal maintenance and alimony?
Alimony is the American term for spousal financial support.
American alimony laws differ from Australian family laws in many ways. While a court may order alimony for the spouse’s lifetime, spousal maintenance is usually either:
- Ordered for a limited period; or
- Ends when a certain event occurs
In Australia, the correct legal term is spousal maintenance.
Do I need a lawyer to apply for spousal maintenance?
It’s not necessary to have a lawyer. However, if you want a court order, you may be required to get independent legal advice. You can contact a community legal service or a private lawyer. You can also get more information on the FCC website.
Is fault taken into consideration?
The Australian family law system is no-fault. It doesn’t matter whether the relationship ended because of one (or both) parties’ conduct. In the past, fault was considered a criminal issue.
These days, fault isn’t relevant to most family law issues, including spousal maintenance.
In some situations concerning children and parenting, fault may be relevant if the child’s health or safety is threatened because of the conduct.
Is it possible to avoid paying spousal maintenance?
Under a BFA for spousal maintenance, if you don’t pay, your former partner could take legal action against you for breach of contract. The BFA would be evidence of your agreement, and a court may decide that you must repay the amount of the missed payments, plus interest, plus legal costs.
If there are court orders (following a hearing or consent orders), failing to pay is a breach of the orders. The consequences are serious. For example, if the other party asks the Court to enforce the orders, it can:
- Order family dispute resolution
- Change the orders
- Find you in contempt of court
- Impose fines
- Send you to prison
Never breach court orders. If you can’t comply, you should seek urgent legal help from a private lawyer or community legal service.
Can I change the amount of spousal maintenance?
If you have a BFA (but no consent orders) you can change the maintenance amount by making a new agreement with your former partner.
If they disagree, you may need to apply to a court. The FCC will change an agreement only in rare circumstances.
If you already have orders, you must apply to the same Court to change them. The Court won’t change orders for minor reasons. The changes must be material (significant), for example:
- New marriage or de facto relationship
- Job loss
- Pay decrease
- New job
- Pay rise
- Change in child-caring responsibilities
- Significant health issues
- Fraud or dishonesty
Seek legal advice from a private lawyer or a community legal service for any changes to spousal maintenance.
If you’re seeking maintenance, you need to consider your income potential and how your needs may change. Weigh up the impact of other issues such as age, health and caring responsibilities. If you’re responding to a claim, consider how much you can afford to pay.
It helps to discuss these issues with an expert – a private lawyer, a community legal service, a family mediator, or even an accountant.
Taking this step now can help you to a more secure future.