What is spousal maintenance?
Under the Family Law Act 1975, a person has a responsibility to assist their former partner financially, whether they were married or in a de facto relationship, if that former partner cannot meet their own reasonable living expenses from their income or assets.
There are two types of spousal maintenance in respect of which an application can be made to the Family Court. The first is spouse maintenance which is financial support paid by a party to a marriage to their former husband or wife. The second is de facto partner maintenance, which is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner. In both cases, the Court must be satisfied that the former spouse or partner is unable to adequately support themselves without such maintenance and that the other party has a capacity to pay it.
The extent of the financial support depends on the needs of the recipient and what the other party can afford to pay.
How to apply for spousal maintenance, and are there time limits?
Parties intending to apply for financial orders in the Family Court must follow certain compulsory preliminary procedures before they can file an application. This pre-action procedure requires the parties to participate in dispute resolution services, such as family counselling, negotiation, conciliation or arbitration. If dispute resolution is unsuccessful, each party must set out their claim to the other party in writing and explore options for settlement.
The aim of these pre-action procedures is to explore areas of resolution and, where a dispute cannot be resolved, to narrow the issues that require a court decision. The objective is to minimise costs and if possible, resolve disputes without the need to apply to a court.
An application for spousal maintenance in the Family Court can be filed at any time after separation but should be filed within 12 months of a divorce or two years of the breakdown of a de facto relationship. If these deadlines are missed, a party wishing to make an application will need to seek permission from the Court and provide reasons as to why they should be given leave to file the application late.
What does a court consider when making a decision and how is maintenance calculated?
In considering an application for spousal maintenance, the Court’s overriding objective is to try to ensure that any order it makes is just and equitable. The court considers the needs of an applicant and the other party’s capacity to pay. In doing so, the court will consider:
- The parties’ ages and health;
- Their respective incomes, property, and financial resources, including whether a party may be supported by a new partner;
- Their ability to work and capacity to earn an income;
- Financial and other contributions made by both parties during the marriage or relationship;
- What is a suitable standard of living;
- If the marriage has affected a party’s ability to earn an income; and
- The future needs of the parties having regard to things such as age, health, care of children, income and their respective financial resources.
All these issues are taken into account in calculating the amount of maintenance, if any, to be ordered. Each case is different and the amount of spousal maintenance payable and the term of payment will vary from case to case. It can be paid either over an ongoing period or as a lump sum.
Applications may be dismissed if the Court considers that the applicant has a capacity to earn money to support himself or herself, or if the other party has no capacity to pay maintenance.
For how long does maintenance have to be paid?
The issues listed above will also influence how long the Court will order spousal maintenance to be paid. It is very common nowadays for the Court to limit the time during which spousal maintenance is payable, taking the view that the recipient should be able to support themselves after that period of time, which may be months or years, having regard to their particular circumstances.
It is not uncommon for interim spousal maintenance to be payable only until final resolution of the parties’ property and financial affairs, at which time, the Court will, as far as practicable, will try to make orders which will finalise the financial relationship between the parties once and for all.
Spousal maintenance will usually end in any event if a party dies and if there is a significant change in circumstances, either party can apply to the Court for an order to be varied, eg if the recipient of spousal maintenance remarries and is supported by the new partner.
Seek legal advice from experienced family lawyers
You should get legal advice before deciding what to do. A family lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you to try to reach an agreement with the other party without going to Court.
At Havilah Legal, we are deeply experienced in Family Law. Contact us if you have any questions, and our Perth or Brisbane branch will be at your side.
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