In marriages and de facto relationships, it is not uncommon for one party to be the breadwinner and the other party to have a smaller or reduced income.

What happens after you separate though? What if your partner moves out and stops paying the mortgage or stops depositing their wage into the joint account?  In those cases, it might be appropriate that you seek spousal maintenance from your former partner to help you meet those costs of living.

Spousal maintenance is separate to child support. You can be entitled to receive child support and still be entitled to receive spousal maintenance.

The Court is required to follow the Family Law Act and relevant case law when determining whether it should make an order for spousal maintenance. If the Court is asked to make such an order, it must consider the following:

  1. Is the party a person entitled to claim spousal maintenance from their former spouse under the Family Law Act?
  2. If so, can they establish that they have a need for spousal maintenance?
  3. If so, can your former spouse afford to pay you spousal maintenance?

The Family Law Act says that a person entitled to spousal maintenance if they are unable to support themselves adequately for reasons such as having the care of children of the relationship who are not yet 18, do you suffer from a medical condition that prevents you from working, or are you entitled to a government pension or allowance. Other reasons can be whether there is a standard of living that should be maintained or perhaps the duration of the relationship and the extent to which it may have affected your earning capacity.

The next step is then to show the Court that your income does not meet your reasonable expenses.  For example, you may be in part-time employment and have the care of small children and so your income is not enough to pay the mortgage and your car repayments each week or if you do, you do not have any enough money left over for groceries and day care expenses.

Once you have shown that you need financial assistance, the next step is to be able to then show that your former partner has enough income to pay for their own expenses and then have enough left over to assist you to meet yours.

Often parties can discuss these matters themselves and it might be that your former partner agrees to make the mortgage repayments which would alleviate your financial pressure.

However, if this is not the case and you find that you are struggling, and your financial circumstances are becoming more and more strained please contact us at Turnbull Hill Lawyers.

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