Spousal Maintenance

Spousal maintenance is the payment by one spouse to their current or former spouse so as to provide them with financial support.

Spousal maintenance, isn’t confined just to married couples – de facto couples including de facto couples in same sex relationships can also be liable to pay or have the right to receive maintenance.

Maintenance is provide for under the Family Law Act.

Maintenance or spousal support is similar to what is referred to in other countries such as America as alimony or palimony.

Commonly asked questions

  • If I separate am I automatically liable to pay maintenance to my former spouse/de facto partner?

    The short answer is, no.

    In Australia, unlike some other countries, maintenance is not an automatic right or obligation after separation.

    To determine whether maintenance is payable, we follow a two-step test.

    Step one requires the person seeking maintenance to satisfactorily show that they are unable to support themselves and meet their needs. They must provide reasons, for example:

    • having care of children of the relationship, or
    • a person who has poor health and medically is unable to work, or
    • where one person has lost the capacity to earn an income, for example, a person has been a stay at home parent and out of paid employment for decades; or
    • any other adequate reason including the grounds set out in the Family Law Act which must be considered.

    The next step of the test is to consider whether the person who is being asked to pay maintenance can in fact afford to pay it, once they have met their own reasonable living expenses.

    The approach is to consider any maintenance as a possibility once the terms of the property settlement are known.

    An exception would be where a party is seeking urgent maintenance, or an interim Order for some maintenance prior to finalising the property settlement. However an application can also be made on a final basis for maintenance.

  • What is urgent maintenance and how long would it be payable?

    Urgent maintenance is where one party requires urgent financial assistance.

    An example may be upon the breakdown of a relationship where one party has no cash resources, cannot fund accommodation and requires emergency funding.

    In an application for urgent maintenance, the Court hears the matter without receiving filed Affidavits from both parties to the proceeding.

    Interim maintenance is maintenance payable for a longer period of time as opposed to the stop gap urgent maintenance type Order and, for example, it might be payable until the final property settlement has been achieved.

    Examples might include making mortgage repayments and outgoings for a family home occupied by a non-working parent and children which would be paid up until the distribution of the sale proceeds of the home and which time would enable that spouse party to move into alternate accommodation.

    Another example may be to enable a former partner or spouse to do a training course for a period of time, so that he or she could re-enter the workforce, be better able to support themselves or, for example, if a former spouse or partner was unwell and unable to work in paid employment.

    An Order for maintenance can also be included in final Orders, and it may be that one person will receive more of the property, which might be lump sum maintenance they receive so as to support them in the future or, if they make regular payments to their former spouse or de facto, then that maintenance would be payable up to a certain sum of monies and over a specified period of time.

    It is rare to have permanent ongoing maintenance.

  • If I pay child maintenance, why am I paying more maintenance to my former partner?

    Child support or child maintenance is ordinarily dealt with under The Child Support (Assessment) Act and is different to maintenance to a former spouse or de facto partner under the Family Law Act.

    In essence, child support is monies towards the financial support of children including clothing, transport, day-to-day living costs, but maintenance to the former partner or spouse is to support that former partner or spouse as opposed to the children. A property settlement would be taken into account in considering what maintenance, if any, should be paid. There would also be consideration in relation to the amount of child support or financial provision made for the benefit of the children.

  • I provided a generous property settlement? What should I do to prevent any further claims?

    It is important to document in a legally enforceable fashion your property settlement.

    Some couples also enter into a Financial Agreement purely confined to maintenance, and the terms of that maintenance agreement might include:

    1. what amount of maintenance is payable by one party to the other; and for how much and over what period of time; or
    2. that each of them would pay the other a notional amount e.g. somewhere between $1 and $10, and that they otherwise contract out of the right to receive or the obligation to pay maintenance to the other.

    As it is in a Financial Agreement, the document needs to be carefully drafted and independent legal advice provided to each of the parties to that agreement. Certain criteria and conditions need to be met in order for the Financial Agreement to be enforceable.

  • I receive spousal support but it’s not enough – can I apply for more?

    In some circumstances you can, including whether you are statute barred, whether the time limit is expired, how that spousal support was payable – e.g. was it under a Financial Agreement, or by Court Order, your individual circumstances and the circumstances of the paying party.

  • I have been paying spousal support to my former wife who has now remarried. She tells me I have to keep paying it because it’s in a Court Order? Is this right?

    The obligation to pay maintenance to a former spouse can automatically cease under the Family Law Act. Grounds include the death of either the paying party or the receiving party, or in the event of the receiving party remarrying.

    If a spouse party remarries they are obliged to inform the paying party in the event they do not, moneys paid after the marriage can be recovered.

    Maintenance is quite complex and there are lots of variables and factors to take into consideration. It is appropriate that you obtain specific advice about your circumstances and the circumstances of your former partner, consider the time limits in any claim and how claims may be avoided or limited.

  • Is there a formula or calculator that tells me how much maintenance I’m entitled to or obliged to pay?

    There is no set formula, but rather each case depends on its own facts.

    Circumstances will include the amount of funds available, the size of the assets each of you has, your earning capacity and reasons why maintenance is sought.