Spousal maintenance is financial support paid by one party to the other following separation, where the receiving party is unable to adequately support themselves. Unlike property settlement, which is a one-time division of assets and liabilities, spousal maintenance addresses an ongoing or temporary need for financial assistance. It is governed by Part VIII of the Family Law Act 1975 (Cth) for married couples and Part VIIIAB for de facto partners.
At Reid+Alexander, we advise clients on both sides of spousal maintenance matters - whether you need financial support to get back on your feet, or you are responding to a claim from your former partner. We help you understand your rights and reach an outcome that is fair and sustainable.
When Is Spousal Maintenance Payable?
Spousal maintenance is not automatic. A party is only entitled to maintenance if two conditions are met:
- The applicant is unable to support themselves adequately - This means they cannot meet their reasonable living expenses from their own income, assets, or earning capacity. The court considers what is "reasonable" in light of the standard of living during the relationship.
- The other party has the capacity to pay - The paying party must be able to provide support after meeting their own reasonable expenses. The court will not make an order that leaves the payer unable to support themselves.
In assessing these conditions, the court considers a range of factors including:
- The age and health of both parties.
- Each party's income, property, and financial resources.
- Each party's earning capacity and ability to gain employment.
- Whether the relationship has affected a party's earning capacity (for example, through years spent out of the workforce caring for children).
- The standard of living that was reasonable during the relationship.
- Whether either party is supporting another person, including children.
- The terms of any property settlement.
Spousal maintenance is separate from property settlement. Even if property has been divided, a party may still be entitled to ongoing maintenance if they cannot adequately support themselves. Equally, a generous property settlement may reduce or eliminate the need for maintenance.
Types of Spousal Maintenance Arrangements
Spousal maintenance can take different forms depending on the circumstances:
- Periodic payments: Regular payments (usually weekly or fortnightly) made from one party to the other. This is the most common form and can be varied if circumstances change.
- Lump sum payment: A single payment made to meet the maintenance obligation. This provides a clean break but requires the paying party to have sufficient resources.
- Urgent or interim maintenance: Where a party has an immediate need, the court can make orders for maintenance on an interim basis while the broader matter is resolved. These applications can be made quickly when financial hardship is pressing.
- Maintenance within a property settlement: Maintenance obligations are sometimes addressed as part of the overall property settlement, for example by adjusting the division of assets to account for one party's reduced earning capacity.
How Spousal Maintenance Is Resolved
Like other family law matters, spousal maintenance can be resolved by agreement or by court order. We work through the following steps:
- Assess your position: We analyse both parties' financial circumstances to determine whether a claim for maintenance is viable, or whether you are likely to face a claim. We consider income, expenses, assets, debts, and future earning capacity.
- Negotiate an agreement: Where possible, we negotiate maintenance terms directly with the other party or their solicitor. Agreed terms can be incorporated into consent orders or a binding financial agreement for enforceability.
- Apply to the court if necessary: If agreement cannot be reached, we prepare and file an application with the Federal Circuit and Family Court. Where the need is urgent, we can seek interim orders on short notice.
- Review and variation: Spousal maintenance orders can be varied or discharged if circumstances change materially - for example, if the receiving party gains employment, enters a new relationship, or the paying party's income decreases significantly.
"Spousal maintenance exists to address genuine financial need after separation. It is not a penalty, nor is it guaranteed - it depends entirely on the circumstances of both parties."
If you need advice on whether you may be entitled to spousal maintenance, or if you are facing a claim, we can assess your position and advise on the best approach. Contact us for a confidential discussion.