Spousal maintenance (also known as alimony)
Under the Family Law Act, when your marriage ends, one party is liable to financially support the other party to the extent that they are reasonably able to do so if that other party is unable to adequately support themselves.
Spousal maintenance (also known as alimony) is a separate to the concept of a “property settlement”.
Spousal maintenance is a one-off payment or ongoing periodic payments from one party to the other party, to assist the other spouse in supporting themselves after separation or divorce.
HOW DO I MAKE AN APPLICATION FOR SPOUSAL MAINTENANCE?
You need to make an Application to the Family Court of Australia or the Federal Circuit Court of Australia for spousal maintenance.
There are three different types of applications for spousal maintenance:
- An application for urgent maintenance (if you have an urgent current need for maintenance);
- An application for an interim order for maintenance (if you have a general current need for maintenance);
- An application for a final order for spousal maintenance (if you have a future need for maintenance).
Once an application has been brought, the court will consider whether you are eligible for spousal maintenance.
AM I ENTITLED TO SPOUSAL MAINTENANCE?
The court will likely consider you are eligible for spousal maintenance if you meet any of the three criteria set out below:
- If you have the care and control of a child of your marriage or de facto relationship who is under 18 years of age;
- If you, by reason of your age or physical or mental incapacity are unable to obtain gainful employment; and
- For any other adequate reason (as determined by the court).
If you are eligible to receive spousal maintenance (for any of the reasons set out above), the court will then consider whether you are unable to support yourself (for example, by reason of child care, health, incapacity). The court must also consider whether your ex-partner:
- is able to financially support themselves; and
- they surplus funds available to also support you.
AM I REQUIRED TO PAY SPOUSAL MAINTENANCE?
In order to determine whether you will be liable to pay spousal maintenance, the court considers the same circumstances of you and your ex-partner, as set out above.
HOW MUCH SPOUSAL MAINTENANCE WILL I RECEIVE OR WILL I HAVE TO PAY?
If the court determines that a spousal maintenance award is appropriate, the amount of the spousal maintenance you receive or pay will be determined by considering various factors including but not limited to the following:
- The age and state of health of you and your ex-partner;
- The income, property and financial resources of you and your ex-partner;
- The physical and mental capacity of you and your ex-partner to participate in appropriate gainful employment;
- Whether you or your ex-partner will be the primary carer for your child/ren moving forward;
- The necessary commitments of you or your ex-partner 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 you and your ex-partner to legally or morally support any other person;
- The eligibility of you and your ex-partner to a pension, allowance, benefit or superannuation;
- The standard of living that in all circumstances is reasonable;
- The extent to which maintenance would increase the earning capacity of you or your ex-partner by enabling the option to undertake a course of education or training to obtain an adequate income;
- The extent to which the party applying for spousal maintenance has contributed to the income, earning capacity, property and financial resources of party responsible to pay spousal maintenance;
- The duration of the marriage or de facto relationship and the extent to which it has affected earning capacity of the party applying for spousal maintenance (for example, where one party became the primary carer of the child/ren and was unable to further their career or employment opportunities as a result);
- Whether there are financial circumstances relating to you or your ex-partner’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 you or your ex-partner. In some circumstances, a property adjustment received from a property order will remove the requirement for spousal maintenance to be paid or received (for example, where one party receives a mortgage-free home);
- The terms of any child support arrangement between you and your ex-partner;
- The terms of any financial agreement between you and your ex-partner (only if that financial agreement does not deal with spousal maintenance).
HOW LONG IS SPOUSAL MAINTENANCE PAID FOR?
One of the main considerations for the court is for you and your ex-partner to achieve a ‘clean break’ such that you do not continue to have a financial relationship. Spousal maintenance orders are not indefinite, they only continue for a fixed time period.
Unless there are any exceptional circumstances, the court will put in place a specified time limit for spousal maintenance to be paid. The time limits will usually coincide with when children begin school, when the party seeking spousal maintenance retrains for or returns to the workforce or when a lump sum is capable of being paid from, for example, the proceeds of sale of a house.
The above advice is general in nature and not intended to replace legal advice. If you’d like to discuss your spousal maintenance entitlements or your responsibility to pay spousal maintenance, please contact our Gold Coast or Sydney family lawyers for a free confidential initial consultation.