Spousal maintenance in Australia is when one partner provides ongoing financial support for their former partner, after a relationship breakdown. At Meillon & Bright, we provide advice to a party of their obligation in supporting a spouse or de facto partner, and also to a person’s entitlement to spousal maintenance.
A person may claim spousal maintenance from their former spouse under the Family Law Act 1995 (Cth) or under the Family Court Act 1997 for de facto couples in Western Australia.
Both statutes do not specifically define what spousal maintenance is, however it is commonly understood as being financial payment(s), either periodical or lump sums, made by one spouse for the benefit of the other, to assist that spouse post-separation or divorce.
An application for spousal maintenance can be made immediately after separation.
If you are married, you do not need to wait for your divorce order to be made. However, there is a time limit of 12 months after the date of your divorce or annulment, to make an application.
If you were in a de facto relationship, you have two years from the date of separation to make an application.
Spousal maintenance may be payable where:
The extent of the support is determined by balancing the needs of the applicant with the capacity of the other party to pay.
The threshold test applied by the Family Court to determine whether or not a need for maintenance may arise are by reason:
The court will take into account a number of factors, including:
There are three types of maintenance:
The deadline for issuing an application for spousal maintenance (and a property order) is 12 months after a divorce order has taken effect, except by leave of the court or consent of the parties.
To apply out of time, you must satisfy the court that:
This time limit does not apply to applications to vary, revive, suspend or discharge an order.
The in’s and out’s of spousal maintenance are a complex area of law.
Together with the legislation, the case law around spousal maintenance can assist parties in determining whether they are entitled to maintenance (or should be paying) and if so, whether this is urgent maintenance, interim maintenance or such monies should be paid forever.
Which type of maintenance is best for a party is variable on the individual set of facts and circumstances.
An order for spousal maintenance will only be made if a party cannot adequately support themselves with their own personal income and assets, and their former partner has capacity to financially support them.
If you have recently separated and need assistance in relation to spousal or de facto maintenance, the Meillon and Bright team can assist you and provide you with further advice.
Contacting an experienced family lawyer is a crucial step in securing your future.
Whether you're only just considering separation or in the early stages of separating from your partner, or whether you're needing assistance with:
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