A Simple Guide to Spousal Maintenance in Australia

 

Are you getting divorced and wondering if you might be entitled to support from your ex?

Here’s our simple guide to spousal maintenance in Australia to help you navigate your separation and divorce.

 

What is spousal maintenance?

Spousal maintenance is the financial support provided by a person to an ex-spouse, during negotiations or after property settlement. While child maintenance provides support for children born of the marriage or relationship, spousal maintenance is solely for the support of the ex-spouse or partner.

Many people may not know that under Australian Family Law, both spouses have a legal obligation to support each other as far as possible, after the separation, no matter who was at fault. However, you cannot expect to be automatically entitled to spousal maintenance as there are numerous conditions that must be met.

Who can apply for spousal maintenance?

Basically, an ex-spouse who is genuinely unable to financially sustain themselves can apply. The same laws and principles apply to de facto and same-sex relationships.

In de facto relationships, however, parties who do not have any children together must have cohabited for a minimum of two years as a couple, before any application can be made (except in exceptional circumstances).

Do I have to go to Court to apply for spousal maintenance?

This is an extremely complicated matter and at the very least, obtaining financial and legal advice from a professional family lawyer is strongly recommended. If you’re entitled to spousal maintenance, your first option would be to try to reach an agreement with your ex and avoid the Court as far as possible. If a Binding Financial Agreement (BFA) exists, spousal maintenance may have formed a part of that, making the process much simpler. A BFA can still be drawn up with the assistance of a family lawyer or mediator. If no BFA exists and no agreement can be reached with your ex, applying to the Court is your only option, which unfortunately could turn out to be a lengthy, stressful and costly process for you both.

What factors will the Court consider when deciding on spousal maintenance applications?

Firstly, the Court will consider whether you are unable to sustain yourself within reason, not necessarily to the lifestyle you were accustomed to when in the relationship, although that is taken into account. As each case is different, the Court aims to provide you with a reasonable standard of living, relevant to your circumstances.

Other factors include whether there is an imbalance in earnings, an illness, a disability or the caring for children has made it difficult for one partner to find employment. The duration of the relationship, the applicant’s age, financial or non-financial contributions made by both partners, the applicant’s needs and the payer’s ability to pay, are all factored into the equation.

Can I dispute my ex’s application for spousal maintenance?

Absolutely! Just as your ex has the right to apply, you have the same rights to file your own application disputing their claims. Both parties have to provide valid reasons as well as full financial statements of all incomes and expenses.

How often are payments made and how long is it paid for?

These terms can be either agreed upon by both parties or ordered by the Court. Payments could be made weekly, monthly, or a once-off lump sum and may also include the use of a home, a car or cover any other household expenses. The period of payment of the spousal maintenance can vary according to the circumstances. It may be set to have an end date or it might be indefinite.

Can the amount change over time?

Yes, it can.

Both partners’ financial circumstances may change substantially, making it necessary to increase, decrease, suspend or even terminate payments. For example, the payer may at some stage lose their capacity to earn, or the receiver may increase theirs or come into some good fortune and receive a "windfall' such as an inheritance or a payout. An increase in the cost of living can also make it necessary to increase the amount periodically.

Is there a time limit to apply for spousal maintenance?

Yes.

Married couples have to apply within 12 months of the date of the divorce. De facto couples have 24 months to lodge their application. Very rarely do Courts allow extensions, but they may do if special grounds can be proved by the applicant.

How much spousal maintenance am I entitled to?

As mentioned earlier, each case is judged on its own merit and there is no set formula to calculate the amount of spousal maintenance one may expect. If you cannot reach an agreement with your ex on the amount, both parties will need to draw up a detailed budget of all your incomes and expenses, over the last six months, and let the Court decide.

What happens if my ex stops making payments?

Not complying with a Court Order can have serious penalties. If your ex stops making payments without discussing it with you, you need to hire a lawyer and immediately apply to the Court to order your ex to pay all arrears. Do not hesitate as trying to enforce arrears older than 12 months can be extremely difficult.

What happens if I start a new relationship?

In most cases, expect spousal maintenance to be terminated once you start a new relationship, although it will depend on the nature of the relationship. If it’s a genuine de facto relationship, the Court will determine the financial nature of your relationship and whether you are able to sustain yourself within this new relationship. On the other hand, if you remarry, you will not usually be entitled to any further spousal maintenance payment.  

 

 

 

 

Ella Hickman is the owner and Principal of Hickman Family Lawyers, one of the leading family lawyers in Perth.

She practices almost exclusively in family law in Perth and has a particular interest in parenting and children’s issues, matters arising from domestic violence in relationships, and property settlement cases.

Ella has a Bachelor of Laws and Bachelor of Arts (majoring in Psychology) from the University of Western Australia and has been practising as a barrister and solicitor since 2014.

Website: https://hickmanfamilylawyers.com.au

Facebook: https://www.facebook.com/hickmanfamilylawyers

LinkedIn: https://www.linkedin.com/company/hickman-family-lawyers/about

 

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