FAQ – SPOUSAL MAINTENANCE

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SPOUSAL MAINTENANCE

Spousal maintenance is an agreement between former partners where one person will provide continuing financial support to the other after the breakdown of their marriage or de facto relationship. Under the Family Law Act 1975, a person has a responsibility to financially assist their former spouse or former de facto partner if that person cannot meet their own reasonable expenses from their personal income or assets. You may choose to agree between yourselves without asking the Family Court to make orders, but we highly recommend getting legal advice before settling on any maintenance payments to safeguard your present and future needs.  If you and your former partner can’t agree, you can apply to the Family Court to make orders, including how much is to be paid, by whom and at what intervals.

This Q & A touches upon numerous aspects on this topic. These posts are only intended as an overview on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Spousal maintenance is a 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.

In the Family Court of Australia, parties intending to apply for financial orders must follow pre-action procedures, which include attending dispute resolution, before filing an application.

If all parties have reached agreement and want to formalise the agreement to make it legally binding, they can apply to the Family Court of Australia for consent orders.

If there is no agreement and your application will be determined by Court, then one party can start court proceedings by filing an Initiating Application to ask the Family Court of Australia to make orders.

Divorce is a completely separate process to financial proceedings.

You can seek spousal maintenance from court even if you are not divorced and when your marriage is still intact (i.e., if you and your spouse are not separated)[1].

[1] “Finances and Property: Spousal Maintenance Finances and property”, Spousal maintenance | Federal Circuit and Family Court of Australia (Webpage, 2021), https://www.fcfcoa.gov.au/fl/fp/spousal-maintenance

 

If a court has made an order that your marriage was a not a valid marriage (the technical way of saying, that the marriage was void), you can still ask the Court to make an order for spousal maintenance, but you must apply within 12 months of the decree of nullity being made.

Yes, people who were in de facto relationships are also eligible to apply for spousal maintenance in certain situations.  You don’t need to be a married spouse to apply for spousal maintenance[1].

[1] “De Facto Property Regime”, Attorney-General’S Department (Webpage, 2021) <https://www.ag.gov.au/families-and-marriage/families/de-facto-property-regime>.

If you were married, applications for spouse maintenance must be made within 12 months of your divorce becoming final.

If you were in a de facto relationship, your applications for de facto partner maintenance must be made within 2 years of the breakdown of your de facto relationship.

If you do not apply within these time limits, you will need special permission of a court. This is not always granted[1].

[1] Family Court of Australia, “Spousal Maintenance – Family Court of Australia, Is there a time limit for applications for spouse maintenance? “, Familycourt.Gov.Au (Webpage, 2021) <http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/property-and-finance/maintenance/spousal-maintenance>.

The Court will consider many things such as (but not limited to),

  • The needs of the person with the lower income and the other party’s ability to pay.
  • Whether the marriage affected either party’s ability to earn an income, for example, if you took extended time off work to care for your children or domestic violence.
  • The circumstances of your children and any childcare responsibilities (including adult children with disabilities).
  • Other factors include,
    • your age and health
    • what is a suitable standard of living.

Spousal maintenance is distinct from a property settlement but will often need to be considered as part of an overall settlement of property matters of the spouses.

The distinction between a property settlement and spousal maintenance is that spousal maintenance does not form part of the asset pool (of which an interim property settlement does) and is paid from a parties’ income or financial resources.

Spousal maintenance does not include payments for dependent children[1]. Even if your children are over the age of 18, you may be eligible to apply for spousal maintenance. Spousal maintenance is not child support or adult child maintenance. Spousal maintenance is not for the financial support of children, it’s for meeting a spouse’s own financial needs.

[1] “4.3.9.10 Income From Maintenance, Property Settlements & Life Interest | Social Security Guide”, Guides.Dss.Gov.Au (Webpage, 2021) <https://guides.dss.gov.au/guide-social-security-law/4/3/9/10>.

Before granting a spousal maintenance order, the court will consider the prerequisites for a maintenance order.

The Family Law Act 1975 requires the court to consider the income, property, and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment[1].

If the court is satisfied that the other party has the capability to maintain the accepted standard of living the application for spousal maintenance will be discharged[2]

It is important to gain legal advice before making a claim for spousal maintenance or resisting a claim for spousal maintenance or agreeing to pay spousal maintenance.

[1] Family Law Act 1975 (cth) s 75.2.b

[2] Hall v Hall (2016) HCA 23

Changed situations can impact on payments of spousal maintenance. The right to regular payments of maintenance ends in following circumstances

  • If you get married again, unless there are special circumstances or when the court decide otherwise.
  • If the person paying maintenance dies.
  • If you improve your financial situation because:
  • You are in a new de facto relationship
  • Your responsibility for caring for children changes significantly
  • Your earning capacity increases.
  • If the party who is paying the spousal maintenance lose his or her source of income.

If you start a new de facto relationship the court will consider, the financial relationship between you and your new de facto partner when considering whether you are able to support yourself adequately.

Any moneys paid in respect of a period after the event you marry another person, may be recovered.

If you have a change in your situation such as job loss or income reduction or knows your ex-partner’s financial situation has improved, you can apply to the Court to vary or discharge the spousal maintenance award. The application to vary or discharge a spousal maintenance award is dealt with on its merits[1].

[1] “4.3.9.10 Income From Maintenance, Property Settlements & Life Interest | Social Security Guide”, Guides.Dss.Gov.Au (Webpage, 2021) <https://guides.dss.gov.au/guide-social-security-law/4/3/9/10>.

It depends. The duration for paying spousal maintenance is assessed on a case-by-case basis.

It can be paid on an ongoing basis while divorce proceedings are being finalised. Alternatively, it can be paid in one lump sum at the end of a property settlement.

The payment of spousal maintenance can be ordered for an indefinite period of time, or it can be ordered for a specific periodic of time with a set end date.

Any existing orders for spousal maintenance cease on the death of either the party receiving or making the spousal maintenance payments[1].

[1] Family Law Act 1975 (cth) s 82.1.

Your former partner can still make an application for spousal maintenance regardless of your bankruptcy.

If your former partner is successful in their application, the order for spousal maintenance will be taken under your debts. They can then choose to enforce those debts through the Court if you do not pay. The funds may also be taken through deduction of your wages or by intercepting your tax refunds.

If you do receive spousal maintenance, you will be required to notify Centrelink, who will then reassess your entitlement to receive benefits.

How this affects your payments will depend on what type of benefits you are currently receiving from Centrelink. If you are concerned about this, it’s best that you speak to a family lawyer to have a clearer understanding of your entitlements.