After a separation or divorce, there may be an imbalance between the former spouses’ capacity to support themselves financially, for example, there may be a difference in income because one spouse was the primary breadwinner during the relationship, or one spouse gave up their career to contribute to the relationship in other ways.

If you are not in a position to support yourself after separation or divorce, and your former partner is in a financial position to provide support to you, you may be eligible for spousal maintenance.

What is spousal maintenance?

Spousal maintenance means that one person from a former relationship provides financially for the other. It applies to both marriage and de facto relationships. The Family Law Act 1975 (Cth) provides that spouses and de facto partners have an obligation to maintain and support each other even after a relationship has broken down. In some unique circumstances, a spousal maintenance order can be made while a marriage is still intact

An order for spousal maintenance is generally made for a limited period of time with the intention of providing a former spouse with some support while they re-establish themselves and set up for their future.

Orders can be made on an urgent, interim or final basis and can provide for payments to be made periodically (for example, fortnightly or monthly) or in a lump sum. Spousal maintenance is separate from child support and child maintenance payments, which are paid for the benefit of a child. A party can be ordered to pay both spousal maintenance and child support, however, the Court may take into consideration any child support payable when determining an application for spousal maintenance.

Applying for spousal maintenance

An application for spousal maintenance is made to the Federal Circuit and Family Court of Australia and must be made within 12 months of the finalisation of a divorce or within 2 years after the breakdown of a de facto relationship.

An applicant for spousal maintenance must show firstly, that they are unable to adequately support themselves and secondly, that their former spouse or partner is in a position to contribute to them financially after meeting their own reasonable living expenses.

There is no set formula to determine spousal maintenance, rather the Court will consider a wide range of factors to assess the circumstances of your particular situation. Some of these factors include:

• The assets, income, financial resources and liabilities of each party;
• The age and health of the parties;
• The parties’ respective abilities to earn an income;
• The impact the relationship has had on each parties’ ability to earn;
• A suitable standard of living in the circumstances;
• Whether there are children and who they live with / spend time with.
• Spousal maintenance is determined in light of the overall property settlement.

A spousal maintenance application requires careful preparation, and a number of financial documents will be required as evidence. Our experienced lawyers can help you to understand your prospects of success for a spousal maintenance application and prepare the evidence required.

If you need advice or assistance, contact [email protected] or call 1300 110 080 for expert legal advice.