After a breakdown of a marriage or a de facto relationship, a former spouse/partner may seek to claim financial support from the other party in circumstances where they are unable to support themselves adequately. This liability to a former spouse/partner is called Spousal Maintenance.

Under the Family Law Act 1975, a person is liable to financially assist (maintain) their former spouse or de facto partner if that person is unable to support themselves adequately and cannot meet their own reasonable expenses from their personal income or assets.

Spousal maintenance is different to Child Support and Adult Child Maintenance.

Who can apply for Spousal Maintenance?

If MARRIED or in a DE FACTO RELATIONSHIP, the party who is in need of financial assistance from their former spouse may be eligible to apply for Spousal Maintenance.

If MARRIED, Applications must be made within 12 months of your divorce becoming final. If the 12 months has expired, a preliminary application to prove hardship is required in order to bring a Spousal Maintenance Application.

If in a DE FACTO RELATIONSHIP, Applications must be made within 2 years of the date of separation. Again, an application for leave to proceed out of time may be brought in certain circumstances.

For more specific details, refer to the De facto property regime page on the Attorney-General’s website.

Note: If you are a resident of Western Australia, the law may be different. Visit www.familycourt.wa.gov.au for more information.

What Does the Court Consider?

When a Spousal Maintenance Application is considered by the Family Court,  Section 72 of the Family Law Act sets out the process for assessing a maintenance claim.

Firstly, the Court must make a threshold finding. It considers the needs of an applicant spouse and the respondent spouse’s capacity to pay. The Court considers the following about both parties:

• age and health
• income, property, and financial resources
• ability to work
• what is a suitable standard of living
• if the marriage has affected your ability to earn an income.

The Court also takes into account who the children (under 18 years of age or adult children who are disabled) live with.

Related articles: How To Apply For Financial Orders that include Spousal Maintenance.

When does the liability to pay Spousal Maintenance end?

In line with normal expectations of the community, a Spousal Maintenance Order ends upon the death of either party or upon the remarriage or the commencement of a de facto relationship of the party receiving maintenance.

There are some exceptions, for instance, the new partner or spouse has no financial resources and is in receipt of a disability support pension. The circumstances if re-marriage would need to be out of the ordinary such that they amount to “special circumstances” sufficient to warrant a continuation of the Spousal Maintenance Order.   

Related Article: Managing Finances After Separation

Spousal maintenance applications can be complex. It may require forensic analysis of both parties’ financial status. It is always recommended to seek legal advice for such matters. Contact us if you have any questions about spousal maintenance.