If you have separated from your spouse or de facto partner, you may be entitled to claim spousal maintenance.
Spousal maintenance is paid by one party to the other party of a former relationship in circumstances where: the person from whom maintenance is sought has the financial capacity to pay that maintenance, and the person seeking financial assistance cannot adequately support themselves.
Family law legislation prescribes spouses and de facto partners have an obligation to maintain and support each other.
Spousal maintenance is common pending final property settlement orders being made, but less common following a final property settlement. There are cases in which it is appropriate and justified for spousal maintenance to be ordered on a final basis such that, in addition to any final property settlement entitlement, a spouse is paid a lump sum or periodic amount.
Am I entitled to spousal maintenance?
The Court considers the financial needs of the applicant and the financial capacity of the higher income earner, and exercises discretion as to whether it is proper to order maintenance and, if so, the amount and frequency of payments.
The capacity for an applicant to support herself or himself is assessed in consideration of his or her responsibilities for caring for minor children of the relationship, whether his or her age or any physical or mental incapacity affects appropriate gainful employment, or consideration of any other adequate reason.
The list of matters a Court considers is extensive and includes:
- the age and health of the parties;
- the income, property and financial resources of the parties;
- the parties’ respective abilities to earn an income and the impact that the relationship has had on each parties’ ability to earn;
- the parties’ responsibilities towards supporting another person or a child of another person;
- the eligibility of either party for a Government pension or allowance or superannuation payment;
- a standard of living that in all circumstances is reasonable;
- any other fact or circumstance that the Court considers relevant and should be taken into account.
The following are typical circumstances where maintenance is likely to be ordered:
- Where the recipient has the primary care of young children;
- Where the applicant of a lengthy marriage is unable to work due to ill health, age or limited work prospects;
- Where one party is wealthy and has a high income and the applicant requires maintenance to meet expenses.
How do I apply for spousal maintenance?
A spousal maintenance application, for married persons, can be made at any time after separation and before a divorce order is made. If a divorce order has been made then a spousal maintenance application must be made within 12 months after the date the divorce order took effect.
For de facto partners whom separate, a spousal maintenance application must be made within two years after a de facto relationship ends.
Applications are made to the Family Court or Federal Circuit Court and late applications may only be made in limited circumstances.
The application should be supported by evidence demonstrating the needs of the applicant and the inability for the applicant to financially meet those needs.
The Court can order urgent spousal maintenance in circumstances where there is an immediate need for financial assistance, but it is not practicable at the time to determine the application. Generally, maintenance will be ordered for a defined period as a ‘stop-gap’ until the application is finally assessed.
An application for spousal maintenance must be prepared carefully and supported with appropriate evidence. Each case is different and is assessed according to the relevant circumstances.
If you think that you may be entitled to spousal maintenance, we recommend you obtain advice and assistance from an experienced lawyer as soon as possible.
If you or someone you know wants more information or needs help or advice, please contact us on 08 9221 5775 or email enquiries@klimekwijay.com .