Spouse maintenance is where a payment is made by one spouse to the other (whether the couple was married or de facto) because of a significant difference in their incomes.
Under the Family Law Act, there is no formula to apply in determining how much spouse maintenance should be paid, rather there are a number of factors that need to be considered.
Spouse maintenance does not arise for every couple, however where it is an issue the amount will differ in every case.
Our family law firm is experienced in dealing with complicated spouse maintenance issues.
There are two types of spouse maintenance applications dealt with in the Court:
- Spouse maintenance is financial support paid to a party to their former husband or wife in circumstances where they are unable to adequately support themselves.
- De facto partner maintenance is financial support paid by a party to a broken-down de facto relationship in circumstances where they are unable to adequately support themselves.
The Family Law Act states that a person has a responsibility to financially assist their spouse or former de facto partner if that person cannot meet their own reasonable expenses.
Where applicable, both parties have an equal duty to support and maintain each other. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.
When making a decision, the Court considers:
- The financial needs of an applicant and
- The respondent’s capacity to pay
- Your age and health
- Your income, property and financial resources
- Your ability to work
- What is a suitable standard of living
- If the marriage has affected your ability to earn an income
- With whom any children (under 18 years of age or adult children who are disabled) live.
Q. Who can apply for Spouse Maintenance?
A. Both married and de facto spouses can seek spouse maintenance from their spouse following separation. The application must be made:
- For married spouses, within 12 months from the date of your divorce becoming final; or
- For de facto spouses within 2 years of the end of the de facto relationship.
Q. How long does Spouse Maintenance go on for?
A. An Order for spouse maintenance continues for
- The time specified in the Order or
- Until the remarriage of the recipient; or
- The death of the payer or recipient; or
- A significant change of financial circumstances for the payer or recipient
Q. Can Spouse Maintenance Orders be changed?
A. Yes once it has been made, an Order for spouse maintenance can be varied at any time when there has been a change of circumstances.
Q. Can Spouse Maintenance be completely extinguished?
A. The only way that a party’s ability to make an application for spouse maintenance can be extinguished is by entering into a Financial Agreement. The effect of a Financial Agreement, if it deals with spouse maintenance, is to oust the jurisdiction of the Court to deal with any future spouse maintenance applications.
Q. Why are spouses responsible for financially supporting each other even after they separate?
A. The Family law Act provides that a person has a responsibility to financially support their former spouse if they are unable to meet their own reasonable expenses. If one spouse has been out of the paid workforce for a number of years to care for the parties children and does not have current work experience or qualifications to obtain paid employment, their spouse has a responsibility to support them until they can earn (or generate) income to support themselves.
Q. Can an application for Spouse Maintenance be made more than 12 months after divorce?
A. You must apply for the Court’s permission (“leave”) to make an application for spouse maintenance after12 months from your divorce becoming finalised. You will need to explain the delay in making the application and satisfy the Courts that you or the children of the relationship would suffer hardship if the application was not heard by the Court.
Q. Can Spouse Maintenance be arranged by agreement ‘outside’ court?
A. Yes. Spouses can agree to resolve their spouse maintenance matter without the Courts intervention. This will save you both a lot of time, money and stress. However, you should seek family law advice about any agreement to finalise your financial matters.
Q. Which court should Spouse Maintenance applications be filed in?
A. Spouses can apply to the Family Court of Australia or to the Federal Circuit Court of Australia to have their spouse maintenance (and property matter) decided. Generally however the Family Court will only hear more complex and complicated cases.
Q. How is Spouse Maintenance paid?
A. Spouse maintenance can either be paid in regular instalments or a lump sum directly to the spouse or to a third party (for example by mortgage payments), depending on the needs and preferences of the spouses.
We hope this information is helpful. Contact us for your own advice by phoning (07) 3221 4300 for a fixed-cost ($330 inc GST) no obligation 1 hour appointment with a family law expert. We can meet with you in person, by phone or by SKYPE.