What is spousal maintenance in Australian family law?
The need for spousal maintenance usually arises after a marriage or de facto relationship has broken down. It’s a court-ordered payment made by one party to another to provide financial support when there’s a significant difference in incomes and future earning ability.
For example, a married couple has separated and is negotiating a property settlement. The husband has always earned more than the wife. The wife has had a low earning capacity because for years she has worked part-time to allow her to care for their children and attend to home duties. A court orders the husband to pay the wife spousal maintenance because of her lower earning capacity.
Spousal maintenance is sometimes known as spousal support.
Who can apply for spousal maintenance?
For married couples, either party can apply for spousal maintenance during separation and up to 12 months after the grant of the divorce order.
For de facto relationships, an application for de facto partner maintenance must be made within 24 months of the date of separation. Eligible relationships are those in which the parties lived together as a couple for at least two years, or they had at least one child together.
It’s important to know your date of separation if there’s a chance that either party will apply for spousal maintenance. If there’s disagreement, a court may have to consider evidence to establish the date of separation. This may increase costs and delay any order for maintenance.
To find out more, we recommend reviewing the Spousal Maintenance page from the Family Court of Australia website.
What requirements must be met for a grant of spousal maintenance?
The biggest factor in working out whether spousal maintenance should be paid is whether the party applying for the maintenance (the applicant) is unable to adequately support themselves. This may be because:
- They are looking after a child (or children) and so their earning capacity is reduced
- They are too old to support themselves
- They have a physical or mental condition which prevents them from being able to properly support themselves
The other party (the respondent) must also have the capacity to pay the maintenance. This means that any application must be realistic and based on evidence of both parties’ earnings, potential earnings, assets and expenses.
How is spousal maintenance worked out?
When calculating spousal maintenance, Australian family law requires a court to consider a range of factors, including:
- Age
- Health
- Child caring responsibilities
- Eligibility for Centrelink payments
- Reasonable expectation of a standard of living
- The financial and non-financial contributions of the applicant
- The applicant’s ability to increase earning capacity
- Whether one or both parties are in new de facto relationships or marriages
- Whether there’s already a binding financial agreement or property settlement for the division of assets
- Child support payments
If the applicant needs to retrain in order to secure a meaningful income, any orders may cover a period of retraining.
Chat to us about your maintenance needs. We’ll help you through.
How is spousal maintenance paid? Do I need a court order?
Often, spousal maintenance is worked out as part of a family law property settlement. The parties agree between themselves, with the help of their lawyers and family dispute resolution. They may make a binding financial agreement.
The agreement can be made for a single lump-sum payment, or for ongoing payments. They can also agree to payment terms. Where the parties can make an agreement, there’s usually no need for a court to intervene. They can ask the court to make consent orders based on the agreement, to ensure that it’s legally enforceable in the event of a breach. For more information, see our page on property consent orders.
However, when parties can’t agree, or the applicant needs urgent maintenance payments, they may choose to apply to the Federal Circuit Court (FCC) for spousal maintenance orders. If the application is urgent, there will be little time to prepare for a hearing. Get in touch with us as soon as possible for legal help.
The FCC will make a time to hear the application. You and the other party will need to gather as much evidence as possible to show your financial circumstances, your obligations, your lifestyle and anything else that may be relevant. This can be complicated. We’ll give you expert legal advice and guide you through the process to help get the best outcome for you and your kids. Contact us to find out more.
If the FCC orders spousal maintenance, it will usually also specify a method of payment. It can be by lump sum or by regular instalments. For regular instalments, the Department of Human Services can collect the money from the respondent and then distribute it to the applicant. The process is similar the collection process for child support.
Can I change the amount of spousal maintenance?
It’s possible to change the amount of spousal maintenance payments.
If the parties have their own private agreement, they can change the payments by making a further agreement. However, if they can’t agree, they may need to apply to the court for orders. The FCC may be unwilling to intervene in an agreement that was intended to finalise financial issues between the parties, so the circumstances would need to be rare and significant. If you need to vary a private agreement, contact us immediately for expert legal advice.
If the payments are subject to a court order, you must apply to the court to make the change.
Usually, the change must be substantial. The law refers to this as a material change. For example:
- One party remarries or commences a new de facto relationship
- One party loses their job or has a significant pay decrease
- One party gets a new job or has a significant pay rise
- Child caring responsibilities change
- One party experiences significant health problems, affecting earning ability
- One party has engaged in fraud or deception to avoid payments.
For how long will I receive spousal maintenance payments?
Orders for spousal maintenance usually have an end date, which is set by the court. For example, payments may end:
- When the applicant gets a job
- On a date fixed by the court
- If either party dies
- If either party remarries
- If either party enters a new de facto relationship (the court will consider the financial circumstances)
If you’re concerned about when your spousal maintenance payments will end, contact us for advice.
