What is Spousal Maintenance?
Spousal maintenance is financial support paid by a person's former spouse or de facto partner where the recipient cannot adequately support themselves. Spousal maintenance is not gender-specific, and following a relationship breakdown, either party to the marriage or de facto relationship may be eligible.
An application for spousal maintenance must be made within 12 months of a divorce or within two years of the relationship breakdown (if it is a de facto relationship). Orders for spousal maintenance can be made by consent of the parties or by a court order.
Who is Entitled to Spousal Maintenance?
A party to a marriage or de facto relationship will be entitled to spousal maintenance where:
- They are unable to adequately support themselves because:
a. They are responsible for the care & welfare of a child;
b. They are unable to gain employment by reason of age or incapacity; or
c. Any other adequate reason; AND
- Their former partner has the capacity to pay maintenance.
In determining whether a party is unable to 'adequately' support themselves, the Court will have regard to the factors set out in s 75(2) of the Family Law Act, including:
- The age and health of both parties;
- The income, property and financial resources of both parties;
- The caregiving commitments of both parties;
- The cost of a reasonable standard of living; AND
- The duration of the relationship and any effect it had on either party's earning capacity.
However, the Court will not have regard to any entitlement of the applicant to an income-tested pension, allowance or benefit when determining a spousal maintenance application.
Types of Spousal Maintenance
Periodic Spousal Maintenance
Ordinarily, a spousal maintenance order provides for maintenance to be paid periodically, such as weekly, monthly or yearly, with the payments to continue for a specified period of time.
Interim Spousal Maintenance
The Court may order spousal maintenance on an interim basis i.e., before a full and final hearing. In these circumstances, the Court will make an order based on their initial (and often limited) investigation of the parties' financial circumstances.
Interim orders will only operate until the final hearing, at which the Court will pursue an in-depth investigation into the parties' financial circumstances and consider whether there is a continued need for maintenance.
Final Spousal Maintenance
Final spousal maintenance orders may be made alongside final property orders. Here the Court will determine whether or not spousal maintenance is appropriate in light of the final property orders. Generally, final spousal maintenance orders are not intended to be permanent, and the Court may specify a time or event on which the orders will cease.
Lump Sum Spousal Maintenance
The Court may order spousal maintenance to be paid in a one-off lump sum payment. Lump-sum payments may be appropriate where the party liable cannot make ongoing periodic payments in their financial circumstances.
A lump-sum payment eliminates the need to collect maintenance and communicate with the other party over a long period and also avoids the complications arising from non-compliance with periodic orders. However, the lump sum payment is a fixed amount, and the recipient is responsible for ensuring that the payment is appropriately applied to their living expenses.
Urgent Spousal Maintenance
Urgent spousal maintenance may be ordered where the intended recipient demonstrates an immediate and urgent need for maintenance. These applications often occur where evidence of the parties' financial circumstances is unavailable, although, the applicant must still demonstrate need and capacity.
Urgent spousal maintenance orders are intended to be for a limited duration and will be varied once the evidence is available.
Termination or Variation of Spousal Maintenance Orders
Generally, spousal maintenance orders are temporary and are designed to only last until further orders. Even in the case of final spousal maintenance orders, they will usually cease on the occurrence of a specific time or particular event.
Variation or Termination
The Court may terminate or vary a spousal maintenance order where:
- The circumstances of either party or the cost of living have changed;
- The initial order was inadequate to support the recipient;
- A party gave false evidence.
Spousal maintenance will be automatically terminated:
- If the recipient of the maintenance dies;
- If the party liable to pay maintenance dies;
- The recipient of the maintenance remarries.
Defending an Application for Spousal Maintenance
An applicant for spousal maintenance must show both that they are unable to support themselves and that their former partner has the capacity to support them. Accordingly, the Court will reject an application for spousal maintenance where:
- The applicant fails to show that they cannot meet their own reasonable living expenses from their own income or resources; or
- The respondent establishes that they do not have the income or financial resources to pay spousal maintenance.
To defend a spousal maintenance application, you will need to provide evidence of the income, financial resources and earning capacity of both parties (including qualifications, experience, or skills) and/or medical evidence which demonstrates an ability or inability to work.
Binding financial agreements can include provisions dealing with spousal maintenance. A financial agreement may identify either party's liability to pay spousal maintenance and will outline the amount of spousal maintenance payable and the method in which it will be paid, e.g., a lump sum or periodic payments.
Alternatively, a financial agreement may waive either party's right or liability to spousal maintenance.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.