Australian family law provides that, where a marriage — including a de facto relationship — breaks down, one party may be entitled to require the other to pay spousal maintenance. So:
In what circumstances can you apply for spousal maintenance?
Is there a time limit for applying?
How long can spousal maintenance last?
Can you continue to receive spousal maintenance if you remarry?
Many people have questions about spousal maintenance, so in this article we will discuss these issues in detail.
Spousal maintenance is not the same as child support. Child support is for raising children, whereas spousal maintenance is paid to a former spouse.
Spousal maintenance refers to the living expenses paid by one party to the other after the breakdown of a marriage or a de facto relationship. Maintenance is usually short-term, with the aim of helping the recipient gradually rebuild their life. If one party has not worked because they were caring for the family and cannot become financially independent after the relationship ends, the other party has a responsibility to provide financial support until the recipient is able to support themselves.
Likewise, spousal maintenance also applies to de facto relationships. However, note that under family law, an Australian court only has the power to determine property interests, property rights, maintenance and related disputes in a de facto matter in any of the following circumstances:
1. The total duration of the relationship is more than two years; or
2. There is a child of the relationship; or
3. The applicant has made substantial financial and non-financial contributions, and it would result in serious injustice to the applicant if the court did not intervene; or
4. The relationship is registered under the relevant state or territory law.
As long as any one of the above circumstances applies, you can apply to the court for property distribution, division of real estate, spousal maintenance, and so on.
Must spousal maintenance be decided by the court?
Not necessarily. As with property settlement, both parties can reach their own agreement, instruct a lawyer to negotiate and draft an agreement, and then sign it. If the parties cannot reach agreement, an application must be filed and the court will decide.
In what circumstances can you apply for spousal maintenance?
One party, A, is unable to maintain a reasonable standard of living on their own, and the other party, B, has the capacity to cover the shortfall in A’s expenses.
How is spousal maintenance calculated?
Each party’s expenses need to be worked out. Generally speaking, everything from the mortgage and utilities down to daily necessities — parking fees, bread and toothpaste, cat and dog food, whatever you can think of — can be counted in.
Once daily expenses are worked out, you can then look at whether A’s income is lower than their daily needs, and whether B’s income, after deducting B’s own daily expenses, leaves enough to “support” A.
It is worth noting that the court does not only consider the most basic material needs. Where financial circumstances allow, certain recreational and lifestyle needs will also be reasonably taken into account. For example, if A wishes to take a three- or four-day holiday on the Gold Coast each year, and B’s income can cover this reasonable expense, these costs may also be included in the spousal maintenance. This does not, however, mean the recipient can make excessive demands.
How is spousal maintenance paid?
– In terms of frequency, it can be paid as a lump sum or on a periodic basis (for example, monthly).
– In terms of payment method, it can be made in cash or by bank transfer, by the transfer of property (for example, a house or a car), or by covering certain expenses (for example, B paying A’s monthly mortgage).
Is spousal maintenance permanent?
Some orders are for an indefinite period, but most are for a fixed term, for example B being required to pay A spousal maintenance for the next 10 years.
Whether or not a fixed term is set, there are still factors that can affect spousal maintenance, such as:
– If A remarries, B’s obligation to pay spousal maintenance ends.
– If A enters into a de facto relationship, the court may make an order terminating spousal maintenance.
– Changes in the parties’ financial circumstances. For example, A was previously unemployed and has since found work; or B previously had a high income but has since been made redundant.
Is there a time limit for applying for spousal maintenance?
Yes.
If the marriage has ended: an application for spousal maintenance must be made to the court within 12 months of the date on which the divorce takes effect. If it is the end of a de facto relationship: an application must be made to the court within 2 years of the end of the relationship. It is still possible to apply for spousal maintenance after the time limit has expired, but you must explain the reasons to the court and apply for an extension of time.
What factors does the court generally consider?
In reviewing a spousal maintenance application, the court will generally consider the applicant’s needs and the respondent’s capacity to pay:
The age and health of each party
The financial position of each party, including income and assets
The capacity of each party to work
The standard of living of each party
Whether the party applying for maintenance is receiving any government benefits
Whether the marriage has affected the earning capacity of either party
Finally
In a divorce case in practice, many other issues will also arise. Before taking action, negotiating through a lawyer can be both efficient and convenient. A lawyer can help the client clearly understand their rights and also help both parties avoid the awkwardness and emotional difficulty that often follows a separation.
