In some circumstances of separation and divorce, spousal maintenance is a consideration. Under the Family Law Act 1975, a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.
Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay. The court also considers:
- your age and health
- your income, property, and financial resources
- your ability to work
- what is a suitable standard of living,
- if the marriage has affected your ability to earn an income and
- with whom the children (under 18 years of age or adult children who are disabled) live.
The Family Court or Federal Circuit Court deal with two types of spousal maintenance applications:
- Spouse maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.
- De facto partner maintenance is financial support paid 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 the event that a party is in receipt of a pension, the Court will effectively treat that party as having no income. Spousal maintenance payments are separate to Child Support payments.
An application for spousal maintenance may be made immediately following separation and before an order for divorce. Once a divorce order has been made final, there is a twelve-month time limit on applying for spousal maintenance. If the application is not lodged within that time frame, the applicant must prove to the Court that there were special circumstances that permitted the application to be made out of time. In the case of a de facto relationship, the time limit for making an application for spousal maintenance is two years from the date of separation.
Spousal maintenance may be paid on a periodic basis for a specific period of time, such as until the children are old enough to attend school and the parent who is seeking the maintenance can resume paid employment, or to provide the person who is in need of spousal maintenance sufficient time to study and re-train to enable them to obtain employment. Often parties will finalise the issue of spousal maintenance with one party paying a lump sum to the other, rather than entering into payments on a weekly or other periodic basis.
Spousal maintenance ceases on the death of the receiving party, remarriage or upon the death of the person making the maintenance payments, depending on the particular circumstances. If there is a change in the financial circumstances of either party, then the order may be varied.
Spousal maintenance is something that varies from case to case. Please call Just Family Law on 9793 7888 obtain independent legal advice in relation to your rights and obligations regarding spousal maintenance.