Spousal Maintenance Lawyers

Following a relationship breakdown, understanding your financial position and ongoing obligations is essential. Where a significant difference in income or earning capacity exists between former partners, spousal maintenance may become a relevant consideration.

At Michael Lynch Family Lawyers, our team of experienced family lawyers and spousal maintenance lawyers provides clear, practical advice tailored to your individual circumstances. Whether you need to seek financial support, respond to a spousal maintenance application, or address ongoing maintenance as part of a broader property settlement, our team is available to assist you.

What is Spousal Maintenance (QLD)?

Under the Family Law Act 1975, spousal maintenance is financial support paid by one party to their former spouse or former de facto partner in circumstances where that person is unable to adequately support themselves following separation.

When dealing with spousal maintenance family law matters, it is important to note that maintenance is distinct from child support. While child support covers the financial expenses of raising children, spousal maintenance focuses on assisting a former partner to meet their own reasonable living expenses following the breakdown of a marriage or de facto relationship.

Under family law, a person may have a responsibility to financially assist their former partner. This obligation can continue after separation and divorce, depending on one party’s capacity to pay and the other’s genuine financial need.

Note: Under the Family Law Act, there is no formula used to calculate spousal maintenance payments. Instead, each matter is evaluated individually based on need and financial capacity.

Eligibility Criteria for Spousal Maintenance

Under Australian family law, there are two distinct types of applications depending on your relationship status:

• Spousal Maintenance: Financial support paid to a former husband or wife in circumstances where they are unable to adequately support themselves following a marriage breakdown.
• De Facto Partner Maintenance: Financial support paid by one party to a former de facto partner where they are unable to adequately support themselves.

The Two-Step Legal Test: Need vs. Capacity

The Family Law Act 1975 states that a person has a responsibility to financially assist their former spouse or former de facto partner if that person cannot meet their own reasonable expenses.

To determine whether spousal maintenance payments should be made, the Court applies a two-step test:

• Financial Need (Applicant): One party must demonstrate that they cannot meet their own reasonable living expenses. This often arises due to ongoing caring responsibilities for children, health issues, age, or having spent years out of the workforce, which limits their immediate ability to obtain employment.
• Financial Capacity (Respondent): The other party must have the financial capacity and available financial resources to provide financial support after first covering their own reasonable living expenses.

If both need and capacity are established, the parties can negotiate maintenance arrangements privately or seek a formal order for spousal maintenance through the Court.

Statutory Time Limits for Spousal Maintenance Applications

Strict legal time limits apply to filing spousal maintenance applications in Queensland and across Australia:

• Married Couples: An application must be made within 12 months of your divorce order becoming finalised.
• De Facto Couples: An application must be made within 2 years of the end of the de facto relationship.

If these deadlines have passed, you must seek legal advice immediately regarding whether you meet the requirements to apply for special permission (“leave”) from the Court to proceed out of time.

Factors the Court Considers in Spousal Maintenance Claims

When evaluating claims, the Court considers several key factors under family law spousal maintenance legislation:

• The financial needs and reasonable living expenses of the applicant;
• The respondent’s income, assets, and overall financial capacity;
• The age and physical or mental health of both parties;
• What constitutes a suitable standard of living, taking into account the lifestyle established during the relationship;
• Each party’s earning capacity and ability to work;
• Whether the relationship has impacted either party’s capacity to earn an income;
• The economic effect of any family violence experienced by either party; and
• With whom any children (under 18 years of age or adult dependent children) reside.

Preparing an accurate financial statement is a key step in documenting your income, expenditure, and financial position clearly.

How Michael Lynch Family Lawyers Can Assist

Spousal maintenance issues do not arise in every separation, but when they do, obtaining early legal advice helps clarify your options. Our Brisbane family lawyers assist clients across South East Queensland with all aspects of spousal maintenance matters, including:

• Private Negotiations: Assisting parties to resolve disputes regarding maintenance through negotiation or mediation without requiring direct Court intervention.
• Formalising Agreements: Preparing legally binding financial agreements or Consent Orders to formalise agreed spousal maintenance obligations.
• Court Proceedings: Representing clients in proceedings in the Federal Circuit and Family Court of Australia when an agreement cannot be reached.
• Varying or Extinguishing Orders: Advising on applications to vary existing maintenance orders or extinguishing future claims through comprehensive financial agreements.

Gold Coast & Brisbane Spousal Maintenance Lawyer FAQs

Who can apply for spousal maintenance?

Both married and de facto spouses can apply to receive spousal maintenance from their former spouse following separation. Generally, an eligible applicant is someone who has been out of the paid workforce for an extended period, has primary caring responsibilities for children, or is unable to adequately support themselves due to age or health issues. 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.

How long do spousal maintenance obligations last?

An order for spousal maintenance continues for the period specified by the Court, or until maintenance ceases due to specific statutory events:

• The remarriage of the recipient spouse (or entering a new de facto relationship in certain circumstances);
• The death of either the payer or the recipient;
• A significant change in financial circumstances for the payer or recipient (for example, if the payer loses their employment or income source).

Can existing spousal maintenance orders be changed?

Yes. Once it has been made, spousal maintenance can be varied if there has been a significant change of circumstances of either party, such as a material change in income, health status, or living expenses.

Can spousal maintenance claims be completely extinguished?

Yes. The primary method to extinguish a party’s right to make future spousal maintenance claims is by entering into a financial agreement. When a financial agreement specifically addresses spousal maintenance, it legally prevents the Court from dealing with any future spousal maintenance applications.

Why are spouses responsible for financially supporting each other even after they separate?

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.

Can an application for spousal maintenance be made more than 12 months after divorce?

You must apply for the Court’s permission (“leave”) to make an application for spousal maintenance after 12 months from your divorce becoming finalised. You will need to explain the delay in making the application and satisfy the Court that you or the children of the relationship would suffer hardship if the application was not heard by the Court.

Can spousal maintenance be arranged by agreement ‘outside’ court?

Yes. Spouses can enter into a private agreement to resolve disputes regarding maintenance without court intervention, saving time and reducing costs. However, it is advisable to obtain family law advice from an experienced family lawyer before formalising any agreement to ensure it is legally binding and protects your financial resources.

Which court hears spousal maintenance applications?

Applications involving spousal maintenance and property settlement are dealt with by the Federal Circuit and Family Court of Australia (FCFCOA).

How are spousal maintenance payments structured?

Spousal maintenance payments can be structured as regular periodic instalments (such as weekly or monthly payments) or a lump sum payment. Payments can be made directly to the former partner or paid to a third party (such as covering mortgage repayments or health cover directly), depending on the needs and preferences of the spouses.

How is spousal maintenance different from child support and property settlement?

While all three relate to financial issues arising from a relationship breakdown, they serve distinct purposes under Australian family law:

• Spousal Maintenance: Relates to ongoing financial support paid by one party to assist their former partner (whether married or de facto) with their day-to-day living expenses when they are unable to support themselves.
• Child Support: Focuses specifically on the financial costs of raising dependent children and is separate from maintenance payments.
• Property Settlement: Involves dividing the overall asset pool, debts, and financial resources accumulated during the relationship.

In many family law matters, parties may choose to address these interrelated financial issues together. This can be achieved through negotiated binding financial agreements or final orders made by the Court. Resolving these issues together allows our Brisbane family lawyers and trusted spousal maintenance lawyers to help clients achieve a practical, comprehensive, and fair outcome.

Discuss Your Options with Our Family Law Team

If you require advice regarding your eligibility to receive spousal maintenance or your obligation to pay spousal maintenance, contact Michael Lynch Family Lawyers. Our firm offers a fixed-price initial consultation to review your circumstances, explain the applicable legal framework, and discuss practical next steps.

To speak with a member of our team or arrange an appointment, you can call our Brisbane office on (07) 3221 4300 or our Gold Coast office on (07) 5676 7600. In-person consultations are available at our Brisbane City office (Level 25, 240 Queen Street) and our Southport office (Commercial Tower, Level 10, 36 Marine Parade). For clients based across regional Queensland or unable to attend in person, initial consultations can also be conducted over the phone or by video call.