Spousal Maintenance

SPOUSAL MAINTENANCE

Spousal maintenance is a periodic or lump sum payment from one spouse to the other spouse, to assist the other spouse in supporting themselves after separation or divorce.

Spousal maintenance also applies to couples in de facto relationships (provided the relationship broke down after 1 March 2009).

MAKING AN APPLICATION

An application for spousal maintenance can only be commenced if the appropriate time limit has not lapsed, the parties are both still alive, and the parties have not entered into a financial agreement that bars a spousal maintenance claim.

There are three types of applications for spousal maintenance:

  • An application for urgent maintenance (acknowledging an immediate need, without comprehensive consideration from the court);
  • An application for an interim order for maintenance (current need);
  • An application for a final order for spousal maintenance (future need).

Once an application has been brought, the court will consider whether the applicant is eligible for spousal maintenance.

IS SPOUSAL MAINTENANCE LIKELY TO BE AWARDED IN YOUR CIRCUMSTANCES?

The court will then consider the following when deciding whether spousal maintenance will be awarded:

1. Firstly, whether the threshold has been met, as follows:

  • The respondent is reasonably able to financially maintain themselves and has a surplus of funds to maintain the applicant; and
  • The applicant is unable to support himself or herself (whether by reason of child care, health, incapacity, or any other adequate reason);

2. Secondly, if the threshold has been met, the court will calculate the extent of the spousal maintenance award. In doing so, the court will consider what each party’s contributions were throughout the relationship and what each party’s respective ‘future factors’ are, including factors such as:

  • The age and state of health of each party, and whether this affects their income earning capacity;
  • The income, property and financial resources of each party;
  • The physical and mental capacity of each party to participate in appropriate gainful employment, noting that a party’s capacity to earn an income can be inferred (regardless of whether they actually have a job or income);
  • If relevant, whether one party will be the primary carer for the children moving forward;
  • The necessary commitments of each party to enable a party to support himself or herself, a child or another person that the party has a duty to maintain (including reasonable weekly expenditure);
  • The responsibilities of each party to legally or morally support any other person;

The eligibility of either party for a pension, allowance, benefit or superannuation (the reason being that the ‘public purse’ should not be responsible to pay maintenance where one spouse has the capacity to pay it to the other);

The standard of living that in all circumstances is reasonable (noting that there is no requirement for the respondent to support the applicant at the same standard of living that the applicant was used to throughout the marriage or relationship, even if the respondent has the capacity to do so);

The extent to which maintenance would increase the earning capacity of the applicant by enabling the applicant to undertake a course of education or training to obtain an adequate income;

The extent to which the applicant has contributed to the income, earning capacity, property and financial resources of the respondent;

The duration of the marriage and the extent to which it has affected the applicant’s earning capacity (for example, where one party became the primary carer of the children and was unable to further their career or employment opportunities as a result);

  • Whether there are financial circumstances relating to one party’s cohabitation with another person (a new partner, for example);
  • The terms of any order made or proposed to be made in relation to the property of the parties. In some circumstances, a property adjustment received will negate any requirement for spousal maintenance (for example, where one party receives an unencumbered home or a capital sum for investment);
  • The terms of any child support arrangement between the parties;
  • The terms of any financial agreement between the parties (only if that financial agreement does not deal with spousal maintenance).
  • The court will deal with spousal maintenance (for a final order) after determining a property settlement and after any child support issues have been dealt with.

HOW LONG CAN A PARTY RECEIVE MAINTENANCE?

Invariably, the court will favour a ‘clean break’ such that the parties do not continue to have a financial relationship.

Absent unusual circumstances, the court will put in place a specified time limit for spousal maintenance. The time limits will usually coincide with when children begin school, when the applicant retrains, when the applicant returns to the workforce, when a lump sum is capable of being paid from, for example, the proceeds of sale of a house.

For more information about commencing an application, defending an application, or varying a maintenance order, please contact our family law department.

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