Spousal Maintenance
In property settlement matters, preference is given to the ‘clean break’ principle which means that arrangements for the division of property should, if possible, provide finality between the parties. Sometimes, however, there is an imbalance between the capacities of former spouses to support themselves financially. This is usually seen where one party was the primary breadwinner, while the other gave up career opportunities to contribute to the relationship in other ways. In such cases, a party may be eligible to apply for spousal maintenance.
What is spousal maintenance?
Spousal maintenance is where one person from a former relationship provides financially for the other. Essentially, spousal maintenance is payable in circumstances where one party cannot adequately meet their reasonable living expenses and the other party has the financial capacity to assist that person.
An order for spousal maintenance can be made on an urgent, interim, or final basis and may provide for payments to be made periodically (for example, fortnightly or monthly) or, in a lump sum. Orders may be made for a limited period of time with the intention of providing a former partner with support while they re-establish themselves and set up for their future.
Spousal maintenance is separate from child support and child maintenance payments, which are paid for the benefit of a child. A party may 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 twelve months of finalising a divorce or within two years after the breakdown of a de facto relationship.
An applicant for spousal maintenance must show that they are unable to adequately support themselves, and 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 range of factors to assess the circumstances for each situation. These factors typically 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 an income
- a suitable standard of living in the circumstances
- whether there are children of the relationship, and who they live with and spend time with
Spousal maintenance is determined in light of the overall property settlement.
A spousal maintenance application requires careful preparation. The application will need submissions setting out the financial position of the parties, the relationship history in terms of caring for children, and the work capacity of the applicant and respondent. The application should be supported by evidence demonstrating the needs of the applicant and the inability for the applicant to financially meet those needs.
Our lawyers can help you to understand your prospects of success for a spousal maintenance application and prepare the evidence required.
If you need assistance, contact [email protected] or call 03 9546 8155 for expert legal advice.