The Family Court of Australia and the Federal Circuit Court of Australia both exercise family law jurisdiction and can hear and determine proceedings for spousal maintenance. This applies to individuals who are or were married, or were in a de facto relationship (this includes same sex couples).
Under the Commonwealth Family Law Act 1975, you have a responsibility following separation to financially assist your spouse, former spouse or former de facto partner if that person cannot adequately support themselves from their personal income, assets and/or financial resources.
Spousal maintenance refers to a sum of money paid periodically or as a lump sum by one person to the other in that situation. Periodic maintenance is ordered where an individual has a need for ongoing financial support, and is usually paid weekly or monthly. This differs to lump sum spousal maintenance orders, which can be made for medical, dental, insurance and other expenses as they arise, or in circumstances where making a periodic order may not be appropriate.
Orders for periodic maintenance are usually for a limited duration, and generally until the payee obtains employment, earning sufficient income to meet their financial needs, commences a de facto relationship, remarries, or is otherwise able to meet their needs from another source, including a property settlement.
When can I make an application for spousal maintenance?
If you were married, applications for spousal maintenance must be made within 12 months of your divorce becoming final. If you were in a de facto relationship you must make an application for maintenance within 2 years of the breakdown of your relationship. If you miss the relevant deadline, an application to the Court seeking permission to apply out of time is required as a preliminary step, however this is not always granted.
In practice, applications for spousal maintenance are typically made in the period between separation and finalisation of a property settlement, when a former partner may have access to limited income and/or funds that are insufficient to meet their reasonable expenses.
Where one individual is without any financial support and in a desperate situation (usually where support has been suspended or terminated unilaterally by their former partner without or at short notice) it is possible to seek urgent spousal maintenance.
In that situation, the usual evidentiary requirements are overlooked in the first instance by the Court. The Court will consider the evidence provided and, if the Court is satisfied that the limited evidence indicates that they are entitled to spousal support and that urgency exists, will order maintenance be paid immediately for a fixed period, usually a few weeks. The Court will then require both former partners to return to Court, to allow for the matter to be considered more carefully.
Orders for indefinite, periodic payments of spousal maintenance, following an adjustment of each individual’s property, are rare as property settlements usually include adjustments for any maintenance component. These adjustments are intended to finally determine (as far as practicable) the financial relationship between former partners.
Notwithstanding this, an order for spousal maintenance, even if it is specific and for a fixed period of time, is capable of being revived many years later in the right circumstances. There are options available to parties to reduce the risk of future claims including by paying a lump sum amount, or entering into a Financial Agreement in some situations.
How do I prove my claim or resist a claim?
To be successful, you must demonstrate that you are unable to support yourself adequately and have a reasonable “financial need”. The second part of the test requires you to establish that the other person can reasonably meet that need because they have the “capacity to pay”. If either of those two factors cannot be proven, an order for spousal maintenance will not be made by the Court.
For example, if you are unemployed but have substantial funds at your disposal, you cannot prove a financial need and an application for spousal maintenance in that situation would fail.
In most cases, a need for financial support must be raised with the other person. An exchange of relevant documents should be proposed, to allow each person to consider their position, and also to provide a genuine attempt to resolve the dispute. Unsurprisingly, a request for payment is often resisted and if so, usually results in the commencement of Court proceedings by the partner claiming financial difficulty.
In that situation, each person must complete and file with the Court a document known as a Financial Statement. This document sets out the evidence in support of their position including:
- their income from all sources,
- itemized expenditure,
- their assets, and
- financial resources and liabilities.
Save for urgent cases, documentation corroborating that information must be exchanged.
There is always an opportunity to resolve the matter by agreement during the Court process prior to the hearing. In cases where this is not possible, the Court will hear the evidence and make a decision.
How will the Court decide whether to order spousal maintenance and if so, how is it calculated?
In these circumstances, both individuals are required to make genuine attempts to secure paid employment so as to be able to support themselves. If either party isn’t working, the Court will scrutinize the reason(s) why this is the case.
If you are working but your income is insufficient to meet your living expenses, you may still be entitled to spousal maintenance.
In making its decision, the Court must refer to a comprehensive checklist of relevant factors either under Section 75(2) for claims between married parties or formerly married parties and Section 90SF if the claim is between former de facto partners.
Factors that are typically relevant are:
- your age and state of health and that of and that of your former partner,
- each person’s ability to work,
- whether the marriage or de facto relationship has affected either person’s ability to earn an income,
- with whom any children live, and
- whether each person enjoys a suitable standard of living.
There is ultimately no mathematical formula applied by the Court in reaching its decision, as each case is unique and will be considered on its individual merits. The Court will scrutinize the parties’ expenditure and make such orders it considers appropriate. The Court will have regard to a standard of living for each person that is reasonable in the circumstances, not the standard that they were accustomed to during their relationship.
How can Sharrock Pitman Legal assist?
If you have any further queries in regards to spousal maintenance or require assistance making an application, we are happy to help. Please feel free to contact our Accredited Specialist Family Law team on 1300 205 506 or by email at firstname.lastname@example.org.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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For further information contact
Ath is a Senior Associate of Sharrock Pitman Legal.
She is an Accredited Specialist in Family Law (accredited by the Law Institute of Victoria). For further information, contact Ath on her direct line (03) 8561 3319.