After separating from your partner, you may find yourself in need of financial assistance. For example, if you are financially dependent on your partner or not working as you are the primary carer of your children. Spouse maintenance is financial assistance for yourself and is separate to child support, which is for supporting your children.
The term ‘spouse’ maintenance is used for married, divorced and de-facto couples. There are time limits to seeking spousal maintenance, depending on your relationship status.
The amount of spouse maintenance received also depends on:
1. The person’s reasonable needs, where they are not able to adequately support themselves and
2. The other person’s capacity to meet these needs.
At Dorter Family Lawyers & Mediators, our team of family law specialists assess your situation and provide advice. The key is to receive the advice early and be equipped with this information moving forward.
What is Spousal Maintenance?
Spousal maintenance refers to the financial support that is paid by one former partner to the other following the breakdown of a marriage or a De facto relationship. Spousal maintenance may be paid periodically as a form of on-going support (e.g. weekly or monthly), or paid as a one-off lump sum. Spousal maintenance may also be colloquially known as alimony – as it is termed in the United States.
Importantly, spousal maintenance is not an automatic entitlement or requirement for either party of relationship following separation.
Whether you or your former partner are entitled to receive or pay for spousal maintenance will depend on both of your particular financial circumstances.
Going to Court
While it is generally recommended that the parties of a separation come to an agreement out of court before commencing legal proceedings, Section 72 of the Family Law Act provides that a spouse or De facto partner has the right to maintenance payments to the extent that:
- The other party is able to maintain them; and
- They are unable to adequately support themselves due to:
- Caring for the child/children of the relationship
- Age, physical and/or mental incapacity
- Other adequate reasons
As such, if you and your former partner cannot come to an agreement regarding financial support, you can file a spousal maintenance application in the Federal Circuit and Family Court of Australia to seek spousal maintenance orders.
A Financial Statement detailing your income and expenses will need to be included as part of your application. The same will be required of your former partner when they file a response.
Who Can Apply for Spousal Maintenance?
Spousal maintenance can be sought by those who have:
Divorced From Their Spouse
In this circumstance it is important to be clear about the date of divorce as the law imposes a time limit on when you will need to submit an application by.
Separated From Their De Facto Partner
It is possible to apply for De facto partner maintenance if you and your former partner have:
- Lived together for at least two years;
- You have had a child together.
Annulled Their Marriage
Where a declaration of nullity has been issued (legally invalidating the marriage), spousal maintenance can still be applied for within certain time limits.
Depending on the type of relationship, the Court requires that an application for spousal maintenance be submitted within a specific time frame following divorce, separation and annulment.
You have 12 months from the date of your divorce to submit an application for spousal maintenance.
De Facto Relationship
You have 2 years from the date of the breakdown of your De facto relationship to submit an application for De facto relationship maintenance.
You have 12 months from the date of the decree of nullity being made to submit an application for spousal maintenance.
Applying outside of the limitation period may be permissible by asking the Court for special consideration. Though you will most likely have to provide good reason for failing to submit an application with the normal time limit.
What Does The Court Consider?
When deciding on the outcome of a spousal maintenance application, the Court will primarily consider whether:
- There is a substantial discrepancy between your income and your reasonable living expenses;
- The applicant (the party lodging the application) is doing everything in their power to meet that discrepancy but cannot do so; and,
- The respondent (the former partner being asked to pay spousal maintenance) has sufficient financial resources to alleviate the applicant’s financial discrepancy while also meeting their own reasonable living expenses and commitments
The Court will also lend consideration to:
- Age and health of both parties
- Whether either party has responsibility of care for a child
- What constitutes a suitable standard of living
- Whether the applicant has entered into a new De facto relationship
- Any existing financial agreements between parties (e.g. a property settlement)
- How much the applicant has contributed to the respondent’s financial resources
Here When You Need Us
If you have just gone through a divorce or separation and want to know your entitlements to spousal maintenance, it is important to seek legal advice from a solicitor who specialises in family law. At Dorter Family Lawyers & Mediators our team is here to help you navigate the process.
With proven experience in negotiating financial arrangements and preparing spousal maintenance court applications, Dorter Family Lawyers & Mediators is dedicated to achieving you the best outcome that serves your unique situation.