In Australia, spousal maintenance is governed by the Family Law Act 1975 (Cth). This legislation applies to both married couples and de facto relationships, ensuring that financial support obligations are not limited to legal marriages.
Does the applicant have adequate income to support themselves?
Are they unable to work due to age, health issues, or caring responsibilities?
The financial capacity of the other spouse to pay:
Can the other spouse reasonably afford to provide financial support?
The length of the relationship and the contributions made by each party:
This includes both financial and non-financial contributions, such as homemaking and child-rearing.
The standard of living during the relationship:
The court will aim to ensure that the applicant's standard of living is maintained as far as possible.
Types of Spousal Maintenance
There are three main types of spousal maintenance in Australia:
Urgent Spousal Maintenance:
This is granted when an applicant is in immediate financial hardship and needs urgent support.
Periodic Spousal Maintenance:
Payments made regularly (weekly, fortnightly, or monthly) to the applicant.
Lump Sum Spousal Maintenance:
A one-time payment made to cover the applicant's financial needs.
How is Spousal Maintenance Calculated?
Unlike child support, there is no fixed formula for calculating spousal maintenance. Instead, the court will assess the following:
The applicant's financial needs and expenses
The respondent's income, assets, and financial commitments
The applicant's capacity to work
The age and health of both parties
Whether the applicant is caring for children
Courts aim to achieve a fair outcome based on the specific circumstances of each case. It is essential to provide clear and detailed financial information when applying for spousal maintenance.
Eligibility for Spousal Maintenance
To be eligible for spousal maintenance, an applicant must prove that they:
- Were married or in a de facto relationship
- Are unable to support themselves due to:
Caring for children from the relationship
Age or health issues preventing them from working
Other valid reasons affecting their earning capacity
The application for spousal maintenance must be made within 12 months of a divorce or 2 years from the end of a de facto relationship. Extensions may be granted in exceptional circumstances.
How to Apply for Spousal Maintenance
The process for applying for spousal maintenance involves several steps:
Step 1: NegotiationBefore going to court, it is advisable to attempt to reach an agreement with your former partner. This can be done through family dispute resolution (FDR) or mediation.
Step 2: Filing an ApplicationIf an agreement cannot be reached, the next step is to file an application with the Federal Circuit and Family Court of Australia (FCFCOA). The application should include detailed financial statements from both parties.
Step 3: Court HearingAt the court hearing, a judge will review the evidence and make a determination based on the factors discussed earlier.
Spousal Maintenance for De Facto Relationships
In Australia, the rights and obligations related to spousal maintenance apply equally to de facto couples. To qualify, you must meet the following criteria:
The relationship lasted for at least two years
You have a child together
One party made significant contributions to the relationship, and it would be unjust not to provide financial support
De facto couples must apply for spousal maintenance within two years of separation.
Common Myths About Spousal Maintenance
There are several misconceptions surrounding spousal maintenance in Australia. Let’s debunk some of the most common ones:
Myth 1: Spousal Maintenance is AutomaticMany people assume that spousal maintenance is automatically granted in every divorce case. This is not true. The applicant must demonstrate financial need, and the other spouse must have the capacity to pay.
Myth 2: Spousal Maintenance is PermanentIn most cases, spousal maintenance is not permanent. It is usually granted for a specific period to allow the applicant to become self-sufficient.
Myth 3: Only Women Can Receive Spousal MaintenanceSpousal maintenance is gender-neutral. People of all genders can apply for financial support if they meet the eligibility criteria.
Spousal Maintenance vs. Child Support
It is important to differentiate between spousal maintenance and child support:
Spousal Maintenance: Financial support for a former spouse or de facto partner
Child Support: Financial support for the care and upbringing of children
Both payments can be ordered by the court, but they serve different purposes.
What Happens If Spousal Maintenance is Not Paid?
If a party fails to pay spousal maintenance as ordered by the court, the applicant can take legal action to enforce the payment. This may involve:
Seizure of assets
Garnishing wages
Fines or penalties
It is essential to comply with court orders to avoid legal consequences.
Relevant Family Law Resources
For more information about spousal maintenance and family law in Australia, consider the following resources:
Navigating spousal maintenance can be complex and emotionally challenging. At New South Lawyers, we specialise in helping clients achieve fair outcomes in Family Law matters. Whether you are seeking spousal maintenance or responding to a claim, our experienced team is here to provide personalised legal support.
Contact New South Lawyers today to schedule a consultation and take the first step towards securing your financial future.
