Online Divorce Joint Application Australia

 What is Spousal Maintenance? Are you entitled to Spousal Maintenance?

Often when marriages or de facto relationships break down one party finds themselves unable to meet their financial needs. In some cases, this may result in the party being entitled to spousal maintenance.

Under the Family Law Act 1975 a person with capacity to pay, has a responsibility to financially assist their spouse or former partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

A party’s obligation to pay spousal maintenance may be discharged by way of regular periodic payments or a lump sum payment.

Spousal maintenance is not child support. Child support is paid for the benefit of the child or children. Spousal maintenance is paid for the benefit of the spouse. The Family Court can order a party to pay spousal maintenance in addition to child support.

Establishing a right to spousal maintenance

To be successful in an application for spousal maintenance it must be established by the Applicant that:

  • The Applicant is “unable to support herself or himself adequately”; and
  • The Respondent is “reasonably able” to pay.

Successful applications usually involve a disparity of income and/or earning capacities between the parties.

Some common situations where spousal maintenance has been granted by the Court include:

  • one party has care of young children and is consequently unable to leave the home and obtain employment; or
  • one party has been out of the workforce for a significant period of time and has become de-skilled or unemployable due to age; or
  • one party is unable to work due to illness.

The right to spousal maintenance does not automatically flow from the Applicant receiving no or minimal income. In circumstances where the Applicant has the potential to earn an income but is choosing not to exercise that potential spousal maintenance may be refused.

What does a Court consider when making a decision about spousal maintenance?

Spousal maintenance is often considered at the same time as a property settlement. However there may be an initial urgent and/or interim application for spousal maintenance.

The Court will consider the needs of the Applicant and the capacity of the Respondent to pay. The Court will specifically consider:

  • The age and health of the parties;
  • The income, property and financial resources of the parties;
  • The ability of the parties to work;
  • What a suitable standard of living is having regard to the parties circumstances;
  • If the marriage/de facto relationship has affected the Applicant’s ability to earn an income; and
  • If there are children of the relationship and if so, where those children reside.

Time limits when applying for spousal maintenance

  • If you were married applications for spousal maintenance must be made within 12 months of a divorce order being granted.
  • If you were in a de facto relationship, applications for de facto maintenance must be made within 2 years of the breakdown of the de facto relationship.
  • Exceptions to the above include, where leave to proceed out of time is granted by the Court or the application is by consent of the parties.

How long can you receive spousal maintenance?

In most cases spousal maintenance will operate for a short period of time following separation to enable Applicants to re-establish themselves. Usually spousal maintenance will be tailored to end upon the Applicant retraining or securing employment. In certain circumstances it may be deemed appropriate that spousal maintenance is payable for a longer period of time.

An Applicant is not entitled to spousal maintenance if he or she marries another person unless the Court otherwise orders. If the Applicant starts a new de facto relationship the Court will take into account the financial relationship between the Applicant and their new de facto partner when considering whether the Applicant is able to support himself or herself adequately.

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