You might have heard about spousal maintenance when discussing property settlement arrangements or divorce in general.
Spousal maintenance can either make you responsible for financially supporting your former partner, or ensuring you receive financial assistance from your ex-partner.
This is a complex situation. So, to understand how it works, here is some important information about spousal maintenance.
What is spousal maintenance?
The Family Court of Australia defines spousal maintenance as “financial support paid by a party to a marriage to their former husband or wife, or by a party to a de facto relationship that has broken down to their former de facto partner, in circumstances where they are unable to adequately support themselves.”
In short, spousal maintenance is like child support – but for adults.
It works by giving your former spouse or partner the means to maintain their needs: either by providing periodic payments for an amount of time, a lump-sum payment or a transfer of assets.
How to know if you are entitled to spousal maintenance?
Spousal maintenance only occurs if the paying spouse or partner is reasonably able to do so and only if their former spouse or partner is unable to support themselves for any of the following reasons:
- Having the care of a child (who is not yet 18 years old) of the marriage or de facto relationship
- They have an age, physical or mental capacity that hinders the person from obtaining and maintaining meaningful employment
- Any other adequate reason stated in Section 75(2) of the Family Law Act 1975
For de facto couples, spousal maintenance may be applied for if the relationship broke down after 1 March 2009, provided certain criteria has been met.
When making decisions for spousal maintenance, the Court takes into consideration the matters discussed in Section 75(2) of the Family Law Act 1975 (“the Act”) for married couples and Section 90SF of the Act for de facto couples.
Generally speaking, these are the key criteria for both married and de facto couples that the Court uses when assessing a person’s entitlement for spousal maintenance:
- The age and state of health of each person
- The income, property and financial resources of each person
- the physical and mental capacity of each person to gain appropriate employment
- Whether either person has care or control of a child of the relationship
- The commitments of each person that are necessary to enable that person to support either themselves, a child or another person they have a duty to maintain
- The responsibilities of either person to support any other person
- The eligibility of either person for a pension, allowance or benefit
- A standard of living that is reasonable in the circumstances
- The extent to which payment of maintenance would increase the earning capacity of the payee spouse or partner by enabling that person to undertake a course of education, training, establish themselves in a business or obtain an adequate income
- The effect of any proposed Order on the ability of a creditor to recover a debt from a person of the marriage or de facto relationship
- The extent to which the payee spouse or partner has contributed to the income, earning capacity, property and financial resources of the other person
- The duration of the relationship and the extent to which it affected the payee spouse or partner’s earning capacity
- The need to protect a person who wishes to continue that person’s role as a parent
- Financial circumstances relating to cohabitation with another person
- The terms of any Court Order made or proposed to be made concerning the property of the couple, including any child support that a person has provided, is to provide, or might be liable to provide in the future for a child of the relationship
- Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be considered
- The terms of any financial agreement that is binding on a person of the marriage or de facto relationship
Keep in mind that the former couple’s standard of living is not an obligatory factor, but just more of a consideration.
It’s actually a misconception to assume that both people are entitled to the same standard of living as when they were together.
What are the 3 types of spousal maintenance?
There are 3 types of spousal maintenance which a separated person can apply for:
Urgent maintenance
The Court can make an Order for urgent maintenance pending the finalisation of the proceedings if:
- A person is in immediate need of financial assistance; and
- if it is not practicable in the circumstances to determine immediately what Court Order, if any, should be made.
Interim Order for maintenance
This is a Court Order that obliges the payee to pay spousal maintenance to the other person until a further Order is made or final settlement has been achieved.
Final Order for maintenance
This is a Court Order for spousal maintenance which forms part of the final settlement and is generally for a specified time or a lump sum amount.
When do maintenance orders become terminated?
In the case of married couples, Section 82 of the Family Law Act 1975 states that an Order for spousal maintenance will end during any of these situations:
- The person receiving maintenance dies
- The person liable to make payments under the Order dies (unless in certain circumstances where the Order is expressed to be binding upon the personal representative of the deceased)
- The person receiving maintenance becomes married again (unless in special circumstances)
These factors are also the same for de facto couples, as detailed in Section 90SJ of the Family Law Act 1975.
Are there time limitations in the application for spousal maintenance?
For married couples, the application must be brought to the Family Court or Federal Circuit Court within 12 months of the date of a divorce order becoming final. For de facto couples, on the other hand, the application for spousal maintenance must be brought before the Court within 2 years of the date of separation.
The Court has the right to refuse the spousal maintenance application if this time has passed.
However, it is possible to permit an application for spousal maintenance to proceed out of time – given, of course, the Court is satisfied that:
- One partner or the child would suffer hardship
- If the applicant would have been unable to support themselves without an income-tested pension, allowance or benefit at the time of making the application
On application by a person, the Court has the power to modify spousal maintenance orders at any given time.
To make amendments in a Spousal Maintenance Order, the following conditions must be met since the order was made or last varied:
- The circumstances of one or both persons have changed
- At least 12 months has elapsed since the Order was made or last varied and the cost of living has changed enough to justify modifying the Order
- Where the Order was made by consent, the amount payable under the Order is not proper or adequate
- For an Order binding on a personal representative of a deceased estate, the circumstances of the estate justify modifying the Order
- Material facts were withheld from the Court, or false material was given to the Court when the Order was made or last varied
If in doubt, always seek legal advice about spousal maintenance.
