After the breakdown of a relationship, parties normally expect to pay for the upkeep of the children but not for their ex-partner. However, the Family Law Act 1975 and Family Court Act 1997 provide that a person can be required to assist an ex-partner who cannot meet their reasonable living expenses. This is a form of financial support known as Spousal Maintenance. This payment is not taken through the government on taxable income but rather it is based on certain circumstances and calculated after the property settlements and/or child support requirements. Spousal maintenance considers where one party has not worked for reasons including looking after the children, age or incapacity.
What is Spousal Maintenance?
Spousal Maintenance is a payment or benefit, whereby one party is liable to financially maintain the other party following the breakdown of the relationship. When considered in Court on a final basis, this is calculated after the property settlement and child support arrangements.
There are three types of spousal maintenance that can be applied: urgent, interim and final. All three types can be categorised by a periodic and/or lump sum payment to help maintain the party of the relationship.
How is Spousal Maintenance Calculated?
Section 75(2) of the Family Law Act 1975 sets out several considerations in relation to spousal maintenance. The Court must make sure that payments are fair and does not put either party into financial hardship. The factors that are considered are:
- The age, physical health and mental state of both parties
- The income and standard of living of both parties
- Which partner has the care and control of the children of the relationship under the age of 18 years
- The duration of the marriage and the impact it has had on the earning capacity of the spouse applying for maintenance
- The parties current relationship and living situation, in particular the financial situation of other partners or spouse
- the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
- the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property, and financial resources of the other party
- Any future child support payments
- Any other circumstances that may need to be considered
Am I eligible for Spousal Maintenance?
If you have recently gone through a separation, you may be eligible for spousal maintenance. In order to determine if you are eligible, you must determine if you have a need for spousal maintenance.
It is important to understand that just because you are eligible for spousal maintenance does not automatically mean your application will be successful. This is left to the discretion of the Court, considering the surrounding circumstances.
What is the process?
In Australia, there are strict limits by which parties must apply to obtain spousal maintenance. For a de facto relationship, the application time is 2 years following separation. For marriage, the application time is 12 months following divorce.
If action is not undertaken in the above-mentioned criteria, then leave will be required from the court to start action.
How can spousal maintenance be varied?
The Court has the discretion to vary spousal maintenance if there is a change in the parties’ circumstance. Examples of changed circumstances can include starting or losing a job, a change in relationship status or just a general improvement in financial situation.
If you have any questions or concerns about spousal maintenance, please do not hesitate to contact one of our friendly team members on (08) 6559 7480 or send us a Facebook Message.