Separation can create financial uncertainty, particularly where one person has a lower income or has spent years out of the workforce caring for children. In some circumstances, Australian family law allows a spouse or former spouse to seek spousal maintenance from the other. Spousal maintenance is financial support where one person cannot adequately support themselves and the other has the capacity to provide reasonable support. However, separation or having a lower income does not automatically create an entitlement.
Who Can Claim Spousal Maintenance?
A person may be able to claim spousal maintenance if they are unable to adequately support themselves and their spouse or former spouse has the capacity to contribute.
Financial need can arise for several reasons. For example, someone may have reduced or stopped working to care for children, have an illness or disability affecting their ability to work, or have limited earning capacity following the relationship. Age and other financial circumstances may also be relevant.
However, earning less than your former partner does not automatically mean you are entitled to maintenance. The Court considers whether there is a genuine need for support and whether the other party can reasonably provide it after meeting their own necessary expenses and financial responsibilities. Similar principles can apply to eligible former de facto partners, albeit having separate requirements.
What Factors Does the Court Consider?
The Court considers the circumstances of both parties, rather than simply comparing their incomes.
Relevant factors can include each person’s income, assets and financial resources, age, health and earning capacity. The Court may also consider whether either party has responsibility for children and the financial commitments associated with their care.
The standard of living that is reasonable in the circumstances may be relevant, as can the effect the relationship had on a person’s ability to earn an income. For example, time spent caring for children may have affected one person’s career or earning capacity.
Family violence can also be relevant. The current law allows the Court to consider its economic effect on a party’s circumstances when determining financial matters.
Ultimately, there is no single factor that determines whether maintenance will be ordered. Each case depends on its particular circumstances.
How Much Spousal Maintenance Can You Receive?
There is no fixed amount of spousal maintenance and no automatic percentage of one person’s income that must be paid.
The Court considers the applicant’s financial needs alongside the other person’s ability to pay. This may involve examining income, assets, expenses, debts, earning capacity and responsibilities for children or others.
Maintenance may be ordered as regular payments or in another appropriate form. Where someone has an immediate financial need, the Court can also make an urgent maintenance order while the broader dispute is being determined.
As a result, two cases with similar income differences can produce different outcomes.
Is Spousal Maintenance the Same as a Property Settlement?
Spousal maintenance and property settlement are separate aspects of family law, although they can affect one another.
A property settlement deals with the parties’ interests in assets, liabilities and financial resources following separation. Spousal maintenance concerns financial support where one person cannot adequately support themselves.
Finalising a property settlement does not necessarily resolve a maintenance claim. However, the financial outcome of a property settlement may affect whether someone continues to need maintenance, and the Court can consider existing or proposed property arrangements when determining a maintenance application.
Are There Time Limits for Spousal Maintenance?
Strict time limits can apply.
For married couples, an application for spousal maintenance can be made before divorce. If the parties are divorced, an application generally needs to be made within 12 months after the divorce order takes effect. If this deadline has passed, the applicant can ask the Court for leave to apply out of time. Leave is not automatic.
For eligible former de facto partners, an application generally needs to be made within two years of the relationship breaking down. If that period has passed, the Court can also grant leave to apply out of time where the relevant requirements are satisfied.
How Do You Apply for Spousal Maintenance?
Spousal maintenance may be resolved by agreement between the parties. If an agreement cannot be reached, an application can be made to the Federal Circuit and Family Court of Australia. Urgent applications may also be available where immediate financial assistance is required.
Because eligibility, financial circumstances, evidence and time limits can all affect a claim, obtaining legal advice early can help you understand your options and avoid missing an important deadline.
Final Thoughts
Spousal maintenance is not automatic, and each matter will depend on the parties’ particular financial circumstances. Obtaining advice early can assist in assessing entitlement, responding to a claim, preserving relevant evidence and complying with applicable time limits.
If assistance is required to negotiate a spousal maintenance arrangement, respond to a claim or commence Court proceedings, please contact our office. Our family law team can guide you through the process with care, clarity and practical advice.
