The Australian legal framework encourages the equal duty of both parties in a marriage or de facto relationship to support and maintain each other where the need exists. As a result, such obligation can be continued even after separation and divorce. Spousal maintenance is a form of financial support paid to a party in the relationship where circumstances illustrate that they are unable to adequately support themselves.
The Court can consider for spousal maintenance payments during or following the negotiation of property settlement terms, subject to time limitations. Under the Family Law Act 1975, the law provides that either party in a marriage or de facto relationship may be liable to maintain support to the other party in the event that they are able to do so, and the other party is unable to meet their own reasonable needs. If your de facto relationship meets certain jurisdictional requirements, the Court can make a de facto maintenance order.
Eligibility of Spousal Maintenance in Australia
The Court will consider a myriad of factors when determining eligibility for spousal maintenance. This includes consideration of the needs of an applicant, and the respondent’s capacity to pay.
The Court may into account the following factors from both parties:
- Age and health
- Income. property and financial resources
- Ability to work
- What is a suitable standard of living, and
- If the relationship has affected your ability to earn an income
This can be found in s 75 of the Family Law Act 1975 in relation to marriage, and s 90SF for de facto relationships
When you can make an application
The Family Court stipulates the time period in which you will be eligible in asking the Court to make an order for spousal maintenance. Following a divorce, if you wish to apply for the Court to make a spousal maintenance order, an application must be made within 12 months of the divorce order taking effect.
If you wish to apply for de facto maintenance orders, this must be done so within two years of the breakdown of your de facto relationship.
There are some instances where spousal maintenance orders can be made outside of these time limits. This is where the Court grants ‘leave’ out of time for a party to bring their application.
Eligibility if starting a new relationship
You are not eligible or entitled to receive spousal maintenance should you marry another person, unless the Court otherwise orders it. In the event that you commence a new de facto relationship, the Court will take into account the financial relationship between you and your new partner. Thus, this will enable the Court to consider whether you are able to adequately support yourself.
Types of Spousal Maintenance
- Urgent – in the event that one party has an immediate need for financial support, the Court may make an order for urgent maintenance without needing to consider the financial circumstances of each party. Urgent maintenance orders are usually ordered for a limited period by way of lump sum or periodic payments.
- Interim – this may be ordered if there is a need for financial maintenance before the finalisation of the parties’ matter, and such need is not urgent or immediate. However, the Court requires sufficient evidence from both partis before making a decision on interim maintenance. The Court may specify a period that the interim maintenance order will apply, or until it is stopped by a further order of the Court.
- Lump sum – if a party has previously shown inconsistency with periodic payments, the Court may find it reasonable to order a lump sum payment.
- Final Orders – these are made once the Court has considered all factors of the parties, and the overall property settlement. The Court may decide a spousal maintenance order or determine that further financial support is not required.
Duration of Spousal Maintenance
The length of a spousal maintenance order varies from case to case. A spousal maintenance order may be either temporary or permanent. A temporary spousal maintenance order may be granted before the completion of final orders during the separation process. However, if the Court is shown that the other party has a clear need for long-term support, and the paying party has the capacity to financially provide this, a permanent maintenance order may be granted.
In the case that you or the other party’s circumstances have changed, spousal maintenance orders can be modified or stopped. Such changes may include ones in relation to income, employment, or remarriage. However, the approval of the Court is typically required to vary the orders.
Resources
Federal Circuit and Family Court of Australia: https://www.fcfcoa.gov.au/fl/fp/spousal-maintenance
Legal Aid NSW: https://www.legalaid.nsw.gov.au/my-problem-is-about/my-family-or-relationship/finance-and-property#spousal-and-de-facto-maintenance
RAMSDEN FAMILY LAW – HOW WE CAN HELP
If you are navigating the complexities of spousal maintenance, Ramsden Family Law is here to guide you through the process with expert legal advice and support. Whether you’re seeking spousal maintenance or responding to a claim, we can help you understand your rights, obligations, and the legal framework that applies to your situation.
Our team of experienced family law specialists will work with you to assess your eligibility for spousal maintenance, based on factors such as your needs, financial circumstances, and capacity to pay. We will guide you through the necessary steps to make an application or defend a claim, ensuring that your case is handled with the care and attention it deserves.
We understand the emotional and financial pressures that accompany family law matters, especially when dealing with spousal support after separation or divorce. With empathy and professionalism, we will help you navigate the legal process, aiming for outcomes that protect your interests and secure a fair resolution.
If you’re facing a spousal maintenance issue, whether it’s urgent or part of a longer-term financial arrangement, contact Ramsden Family Law today. Our team will provide you with the tailored legal advice and support you need to make informed decisions about your future.
Your family’s financial security is our priority. Let us help you take the next step with confidence. Contact Ramsden Family Law now for a consultation and receive the support you deserve during this challenging time.
Please note: The content of this article provides general guidance and should not be taken as legal advice. For advice specific to your circumstances, please contact a family law professional
