What is spousal maintenance?
The Family Law Act 1975 (Cth) (the ‘Act’) provides that spouses and de facto partners have an obligation to maintain and support each other and that the obligation continues even after a relationship has broken down.
Spousal maintenance is where one person from a former relationship provides financially for the other. Essentially, spousal maintenance is payable in circumstances where one party cannot adequately meet his or her reasonable living expenses and the other party has the financial capacity to assist that person.
In property settlement matters, preference is given to the ‘clean break’ principle which means that final arrangements for the division of property should, if possible, provide finality between the parties. Therefore, spousal maintenance is often not relevant in family law matters as it is preferable that financial affairs are finalised rather than ongoing.
In some circumstances, however, maintenance is justified and in a number of family law matters is ordered either ongoing or on an interim basis, pending the final determination of a property settlement.
How is spousal maintenance determined?
Spousal maintenance is determined in light of the overall property settlement. As with most family law matters, the parties will need to participate in dispute resolution processes before going to Court.
The Act sets out several principles to consider when determining whether it is just and equitable to order spousal maintenance. The Court will take into account:
- The assets, income, financial resources and liabilities of each party;
- The age and health of the parties;
- The parties’ respective abilities to earn an income;
- The impact the relationship has had on each parties’ ability to earn;
- A suitable standard of living in the circumstances;
- Whether there are children and who they live with / spend time with.
In essence, this means that an applicant for spousal maintenance must show firstly, that he / she is unable to adequately support himself / herself and secondly, that the former spouse or partner is in a position to contribute financially after meeting his / her own reasonable living expenses.
Applying for spousal maintenance
An application for spousal maintenance is made with the Family Court or Federal Circuit Court. Applications must be made within 12 months of the finalisation of a divorce or within 2 years after the breakdown of a de facto relationship. In limited circumstances the Court will allow a party to make a late application however there is no guarantee a late application will be allowed.
The application will need to contain submissions setting out the financial position of the parties, the relationship history in terms of caring for children and the work capacity of the applicant and respondent. It should take into consideration the immediate and long-term earning capacity of the applicant and respondent.
The application should be supported by evidence demonstrating the needs of the applicant and inability for the applicant to financially meet those needs. This will include financial statements and, where relevant, medical reports setting out any health concerns and how these impact on the applicant’s earning capacity. Job search diaries and details of any training necessary to re-enter the workforce may also be relevant.
Applications for spousal maintenance require careful preparation – the argument for maintenance needs to be clearly documented and supported with evidence. Our Lawyers will provide a cost-benefit analysis to determine the likely success of an application for maintenance before assisting you with the necessary documents.
