Australia’s Family Law Act 1975 makes it incumbent on two former partners in either a marriage or a de facto relationship to ‘support and maintain’ each other as much as possible, even after separation and divorce.
This duty is most commonly known as spousal maintenance and means that where an ex-partner is unable to adequately support him- or herself, the other person will provide their former partner with financial support where they can afford to do so.
How this duty works and what factors the court takes into account when one partner makes an application for spousal maintenance is explored below. Many ex-couples will try to finalise spousal maintenance when negotiating a property settlement of assets from the marriage and a child support assessment so that the resolution of all financial issues arising from the break-up are dealt with at the one time.
If you wish to apply for spousal maintenance or are responding to such an application from an ex-partner, it makes sense to seek the guidance of a law firm with proven experience in family law matters, such as Big Law.
How do you apply for spousal maintenance?
As mentioned above, in many cases a couple will seek to decide on a maintenance arrangement as part of a wider property settlement and a child support assessment. This process will often be part of a mediation process to avoid the parties having to go to court, where costs, time and stress are all higher. Even if not part of a property settlement or child support discussion, spousal maintenance can be a stand-alone negotiation achieved through a dispute resolution process.
If an agreement can’t be achieved through mediation, an application is made to the court for a financial order on maintenance.
If you were married, an application for spousal maintenance needs to be made within a year of the finalisation of your divorce. If the application relates to a de facto relationship, you have two years since the breakdown of the relationship within which to make an application. Outside of these time limits, the permission of the court is required to make an application.
Each party will need to submit a financial statement detailing their income and expenses to accompany their respective application and response.
Once an application is made, the court considers a range of factors to assess the needs of the ex-partner making the application for maintenance, as well as the other party’s capacity to pay. There is no set formula for deciding on whether or not to award maintenance but factors considered in assessing the application include:
- the age and health of both ex-partners;
- the income, property, and financial resources of each party;
- the ‘reasonable’ day-to-day living expenses of each spouse;
- the ability of each party to work;
- a determination about a suitable standard of living;
- whether the circumstances of the marriage affected the applicant’s ability to earn an income;
- whether either party is responsible for supporting any other person;
- whether either party is eligible for social security or superannuation benefit;
- the extent to which the applicant has contributed to the other party’s financial resources;
- any present or future liability of either party for child support payments;
- any financial agreements between the parties.
Where there are children under 18 years of age (or with other special needs, such as a disability) from the marriage, the court also takes into account which parent the children live with. Once children do not require full-time care (i.e. school age), the partner receiving spousal maintenance may be expected to find employment to reduce the financial burden on the ex-partner.
How we can help
It’s important to recognise that spousal maintenance is generally considered a short-to-medium term measure after a divorce or separation, payable until the applicant is able to adequately support their lifestyle once again.
If the person receiving spousal maintenance remarries, for example, the maintenance payments will end unless otherwise ordered by the court. If the party receiving maintenance starts a new de facto relationship, the court will look at the financial relationship between the party and their new de facto partner to see whether they are now able to adequately support his or her needs.
Whether you need advice and guidance at the dispute resolution stage, or in seeing an application to the court through to a satisfactory outcome, Big Law can help. Our expert family law team have many years of experience helping clients through what can be a difficult period in the painful months and years after a relationship breakdown.
Call us for an initial case assessment today.