When a marriage or de facto relationship ends, one important consideration for both parties is financial support. In Australia, spousal maintenance refers to payments made by one spouse or partner to the other to help support them after separation. This guide will help you understand your rights and obligations when it comes to spousal maintenance, outlining key factors such as eligibility, types of maintenance, how it’s calculated, and the legal process involved.
What is Spousal Maintenance?
Spousal maintenance is financial support provided by one party to their former spouse or de facto partner. Under Australian family law, both parties have a duty to support and maintain each other, even after separation, if one partner cannot adequately support themselves.
The Family Law Act 1975 sets out the provisions regarding spousal maintenance in Australia. It’s important to note that spousal maintenance is different from child support, which is specifically intended for the care of children.
Eligibility for Spousal Maintenance
To be eligible for spousal maintenance, the person seeking support must demonstrate a need for financial assistance, and the paying party must have the financial capacity to provide that support. Some common factors considered in determining eligibility include:
- Age and health: If the applicant has health issues or is of an age that makes it difficult to gain employment, they may be more likely to receive spousal maintenance.
- Income and financial resources: The applicant must show that their income and resources are insufficient to meet reasonable living expenses.
- Ability to work: This includes consideration of whether the applicant can work or needs time to retrain or re-enter the workforce.
- Length of the relationship: Longer marriages or de facto relationships are more likely to result in spousal maintenance payments.
Spousal maintenance may also be temporary, such as providing financial support while the recipient adjusts or re-enters the workforce after the separation.
Types of Spousal Maintenance
Spousal maintenance can be categorised into several types:
- Urgent or interim maintenance: This is a temporary order made when immediate financial assistance is needed. It is generally a short-term solution while awaiting a final decision from the court.
- Periodic maintenance: Regular payments made weekly, fortnightly, or monthly to help the receiving party cover their living expenses. This is the most common form of spousal maintenance.
- Lump sum maintenance: A one-time payment that covers spousal support obligations. This can be advantageous in some cases, providing certainty for both parties.
How is Spousal Maintenance Calculated?
There is no fixed formula for calculating spousal maintenance in Australia, but several factors influence the amount and duration of payments:
- Income and expenses: The court will consider the reasonable living expenses of both parties and their ability to cover those expenses.
- Standard of living: The standard of living during the relationship is taken into account, as well as what the lower-income party requires to maintain a reasonable standard of living post-separation.
- Capacity to pay: The paying spouse must have the financial capacity to meet their own living expenses while providing financial support to their former partner.
- Future needs: This includes considerations of the receiving spouse’s potential future needs, such as retraining, entering the workforce, or caring for children.
The court has wide discretion in determining maintenance payments, and each case is assessed based on its specific circumstances.
Applying for Spousal Maintenance
There are two primary ways to apply for spousal maintenance in Australia:
- By agreement: If both parties can reach an agreement on spousal maintenance, they can formalise the arrangement through a binding financial agreement or a consent order.
- Through the court: If an agreement cannot be reached, an application can be made to the Federal Circuit and Family Court of Australia. In this case, the court will assess the applicant’s need for financial support and the paying party’s capacity to pay.
It is essential to apply for spousal maintenance within 12 months of a divorce being finalised or within 2 years of the breakdown of a de facto relationship. Exceptions can be made in special circumstances, but these applications require court approval.
Varying or Ending Spousal Maintenance
Spousal maintenance is not necessarily permanent and can be varied or ended if circumstances change. Some common reasons for changing or stopping spousal maintenance include:
- Change in financial circumstances: If the paying spouse’s financial situation changes (e.g., loss of income), they may seek to reduce or end payments.
- Recipient’s increased income: If the recipient becomes financially independent or their circumstances improve, the paying spouse may apply to reduce or stop payments.
- Re-marriage or new relationship: If the recipient enters into a new de facto relationship or marriage, their entitlement to spousal maintenance generally ends.
The court may consider these changes on a case-by-case basis.
How to Avoid Spousal Maintenance
While spousal maintenance plays an important role in supporting one partner after separation, not all situations require such payments. If you’re concerned about being required to provide spousal maintenance, there are steps you can take to avoid or minimise this obligation within the bounds of Australian family law. It’s crucial to approach this matter carefully, with the help of legal advice, to ensure your actions align with the law and do not unfairly disadvantage your former partner.
Here are some ways to potentially avoid spousal maintenance:
- Reach a mutual agreement: The best way to avoid court-ordered spousal maintenance is through a mutual agreement with your former spouse or de facto partner. Open communication, negotiation, and compromise can result in an arrangement that satisfies both parties without involving the courts.
- Demonstrate financial independence of both parties: If your former partner is financially independent or capable of supporting themselves, they may not qualify for spousal maintenance. To avoid being ordered to pay, it is essential to demonstrate that your ex-partner has the resources or earning capacity to meet their own needs.
- Prove financial inability to pay: Even if your former spouse or partner is eligible for spousal maintenance, you cannot be forced to pay if you genuinely lack the financial capacity to do so. To avoid or reduce maintenance obligations, you must demonstrate that you do not have sufficient income or resources beyond your own basic living needs.
- Reassess financial agreements post-separation: Circumstances can change over time, and what was once a fair spousal maintenance arrangement may no longer be necessary or appropriate. You may seek to reduce or stop spousal maintenance by demonstrating changes in the financial situation of either party.
Legal Representation and Advice
Given the complexity of spousal maintenance laws and the discretion courts have in awarding payments, seeking legal advice is crucial. A family lawyer can help assess your eligibility, negotiate with the other party, and represent you in court if necessary.
Conclusion
Spousal maintenance is an important consideration in many separations, ensuring that a partner who is unable to support themselves can receive financial assistance. Understanding your rights, obligations, and the legal process is essential for achieving a fair outcome. Whether you are seeking or opposing spousal maintenance, it’s advisable to seek expert legal advice to guide you through the process.
The family law experts at WMD Law are here to help. Contact us today.
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