Spousal Maintenance in Australia: What you need to know

• What is spousal maintenance?

• When should I apply for spousal maintenance?

• Am I eligible for spousal maintenance?

• How do I apply for spousal maintenance?

• Will I receive spousal maintenance if I re-marry?

• Can I avoid paying spousal maintenance?

• What is urgent spousal maintenance?

1. Spousal maintenance could be obtained either by agreement or a court order.
2. You do not have to be legally divorced to claim spousal maintenance.
3. Spousal maintenance is applicable for both married couples and de facto partners.
4. You will cease receiving spousal maintenance the instance you re-marry.

What is spousal maintenance?

Spousal maintenance is an agreement between the ex-spouses where the financially stronger party continues to support the other party for a specific period.

According to Australian family law, one spouse has a responsibility to support the other if that individual is in a dire financial situation earning insufficient funds to support their daily needs.  

When should I apply for spousal maintenance?

You can claim spousal maintenance from your ex-partner if you believe they are able to financially support you and if: 

• Your personal income is inadequate for you to meet your living expenses; or

• You are unemployed or work less hours due to carers responsibility.

Spousal maintenance could be obtained either by: 

• Agreement between the parties; or 

• A court order/spousal maintenance order. 

Am I eligible for spousal maintenance?

You do not necessarily have to be divorced to claim spousal maintenance. You can apply for spousal maintenance if: 

• You and your ex-partner are separated but still legally married. 

• You and your ex-partner are divorced - make an application within 12 months after divorce. 

• You and your ex-partner were in a de facto relationship - make an application within 2 years of separation. 

How do I apply for spousal maintenance?

You can start proceedings by making an initiating application to the Federal Circuit and Family Court of Australia. 

Your spousal maintenance application could be made together with your property and parenting application or on its own. 

If you are only applying for spousal maintenance application, there is no filing fee.  

It is advisable to consult a family lawyer before you decide what to do and in filing an application with the Court. 

The calculation for spousal maintenance considers a range of factors, and can be used for spousal maintenance obtained both through agreement and through a court order. The amount of spousal maintenance will vary on a case-by-case basis. In the event you claim or pay spousal maintenance by agreement, it is advisable to consult a family lawyer for your spousal maintenance assessment. 

The court will consider both the needs of the applicant and the other party's capacity to pay. The court would always take a balanced and just approach in making a maintenance order. 

A few factors that the courts consider in making a spousal maintenance order are: 

• Age of the parties

• Income and financial resources of both the parties

• Ability to work

• Health of the parties

• Suitable standard of living

• If the marriage has affected your ability to earn an income 

• If one party is the primary carer of the children (if the children are minor or disabled) 

Will I receive spousal maintenance if I re-marry?

According to Australian family law, you are not entitled to maintenance if you re-marry unless the court orders otherwise.

If you start a new de facto relationship the court would take into consideration the financial relationship between you and your current partner in considering if one should receive spousal maintenance from their ex-partner. 

You are legally bound to notify your ex-partner about your re-marriage.

Can I avoid paying spousal maintenance?

You may not be required to pay spousal maintenance in the following circumstances:

• If you are not in a stable financial position to meet your e-partner’s spousal maintenance demands, you have the right to negotiate the amounts to a fairer and more reasonable sum.
• One party is required to establish the position of their inability to finance the living expenses from their personal income in order to receive spousal maintenance from the other party. This position needs to be established before claiming spousal maintenance. 
• If your ex-partner remarries, you can cease making your spousal maintenance unless court orders otherwise as stated above. 

If the relevant party is not in agreement with the spousal maintenance application made by the partner, they are entitled to defend themselves by establishing their position. 

What is urgent spousal maintenance?

If you want a spousal maintenance order urgently, you can apply for urgent maintenance.

If the court reasonably believes that you need urgent financial assistance but requires more time to decide on the exact order that needs to be granted, you will be granted an interim spousal maintenance order. 

When making an interim spousal maintenance order for de facto partners, the court will go one step further and take into consideration factors as mentioned below: 

• The geographical requirement of the parties e.g. if one the parties were ordinarily resident in a particular location when the application was made 

• The length of the relationship  

• Availability of children to the de facto partner

• If the applicant has substantially contributed to the relationship and the non-grant of the interim order would prejudice the applicant 

• If the de facto relationship was legally registered 

We can provide you with timely advice on your application for spousal maintenance, including by:

• Advising you on your rights and entitlements in relation to spousal maintenance.
• Negotiating with your ex-partner or ex-partner's solicitor.
• Assessing your spousal maintenance.
• Drafting  your spousal maintenance agreements.
• Guiding you through the court process and making spousal maintenance applications on your behalf.