It is not widely known that when we enter into a marriage or a de facto relationship, in
certain circumstances, a spouse may be liable to maintain the other in the event that
their marriage or de facto relationship breaks down.
This responsibility to financially assist the other is set out in the Family Law Act and
exists if that person cannot meet their own reasonable expenses from their personal
income or assets.
Where this need exists both parties have an equal duty to support and maintain each
other as far as they can and this obligation can continue even after separation and
divorce. The extent of the support depends on what the other party can afford to pay.
Spousal Maintenance is different to Child Support
It is important to note that spousal maintenance is not child support.
Child support is paid for the benefit of children and in addition to that the Family Court
can order a party to pay spousal maintenance. The Department of Human Services
administers Australia’s Child Support Scheme and works with separated parents to
manage their child support responsibilities for the benefit of their children.
What is Spousal Maintenance exactly?
The Family Court can only make an order for one party to pay “spousal maintenance” to
the other if the spouse making the application is unable to adequately meet his or her
own reasonable needs and the other spouse has the capacity to pay.
Maintenance for a former spouse or de facto partner is the division of future income
and/or current capital assets following the breakdown of a marriage or de facto
relationship. In certain circumstances, separating couples can have an obligation to
provide ongoing financial payments in the form of weekly or lump sum payments by way
of maintenance for their former spouse or de facto partner.
This liability to maintain a former spouse or de facto partner can continue until their
death or until they have the financial capacity to support themselves. Usually the
payment of spousal maintenance is tailored to end upon the occurrence of a specific
event, for example, the person receiving maintenance completing training or re-skilling,
securing employment or commencing a new de facto relationship.
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Applications for spousal maintenance for married couples must be made within 12
months of their divorce becoming final whereas applications for de facto partner
maintenance must be made within 2 years of the breakdown of the de facto
It is possible to apply outside the time limits but the Court does not always grant these
What if the person is in a new relationship?
A former spouse is not entitled to maintenance if they marry another person. If you start
a new de facto relationship the court will have regard to the financial relationship
between that person and their new de facto partner when considering whether the
former spouse can support himself or herself adequately.
What does a Court consider?
Spousal maintenance is not automatic. In deciding a maintenance application, a Court
considers the needs of an applicant and the respondent’s capacity to pay including the
- Age and health
- Income, property, and financial resources
- Ability to work
- Ability to earn an income as a result of the marriage
- Suitable standard of living
It is most likely to be ordered in cases where one party is at home with the care of young
children and therefore unable to exercise their income earning capacity.
Other examples could be where one party has been out of the workforce for a significant
period of time raising the children and has become de-skilled or unemployable due to
age, or where one party was unable to work due to illness.
A party’s obligation to pay spousal maintenance may be discharged in various ways
including through periodic and regular payments or by way of a lump sum payment. It
may also exist for different periods of time.
Although spousal maintenance is generally intended to operate only for a short period of
time following separation to enable applicants to get back on their feet, in certain
circumstances, it may be appropriate that spousal maintenance be paid for a longer
period of time.
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The calculation of and assessment for the need of spousal maintenance requires a deep
understanding of family law and time limits apply.
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