Spousal maintenance is a support payment made to a partner who is unable to support his or herself after the parties have separated or divorced.
Parties in a de facto relationship are also eligible to receive de facto partner maintenance, in circumstances where a de facto partner is unable to support themselves after the relationship has ended.
If you are separating, you should try to reach an amicable agreement about your finances, including whether one partner should continue to maintain (in whole or in part) the other party.
If you are:
- able to reach an agreement about spousal maintenance, you can make a Binding Financial Agreement or Consent Orders.
- unable to reach an agreement about spousal maintenance, you can apply to the Court who will make a decision on your behalf. There are time limits for applying to the Court, see below.
A couple has an obligation to maintain each other, even after their relationship breaks down.
The likelihood of spousal maintenance being paid, and the extent of the payments, will vary depending on various factors – firstly, whether one party can actually afford to support the other, and to what extent.
The Family Law Act sets out a list of items that should be considered when assessing whether spousal maintenance should be paid. It is not a “one rule fits all” scenario, but rather, a set of guidelines to assist in determining whether spousal maintenance payments would be appropriate.
Section 75 of the Family Law Act
When considering spousal maintenance, take into account the following matters:-
- each parties age and health;
- the income, property and financial resources of each of party;
- the physical and mental capacity of each of them for appropriate gainful employment;
- whether either has the care or control of a child of the relationship;
- commitments of each party that are necessary to enable the party to support him or herself and a child or other person the party has a duty to maintain;
- the responsibilities of either to support any other person;
- subject to subsection (3), the eligibility of either party for a pension, allowance or benefit, such as a government benefit or superannuation;
- a standard of living that in all the circumstances is reasonable; and
- the extent to which the maintenance would increase the ability of the party to earn an income, for example, by giving them the opportunity to undertake training, further education, etc;
- the extent to which the party seeking maintenance, has contributed to the income, earning capacity, property and financial resources of the other party;
- the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
- the need to protect a party who wishes to continue that party’s role as a parent;
- if either party is cohabiting with another person–the financial circumstances relating to the cohabitation;
- any other relevant facts or circumstances;
- any property division set out in court orders, consent orders or a financial agreement.
Time Limits apply
There are time limits in which to apply to the Court for maintenance payments:
- 2 years after the date of separation for de facto couples, or
- 1 year from the date of divorce for couples who were married.
Application can be made to the courts out of time, but you need to have a good reason and it is not certain that the request will be granted.
Can we make a Binding Financial Agreement, in which we both agree that no spousal maintenance will be paid?
Yes, you can.
However, if one party is receiving an income tested government pension or allowance, then you cannot absolutely rule out a claim for spousal maintenance. This is set out in section 90F of the Family Law Act, as a way to limit reliance on government assistance where one partner is in a position to support the other party.
However, if you’ve agreed between yourselves that there will be no spousal maintenance payments, and record this in a Binding Financial Agreement, should the other party change their mind, they will need to make a court application within the allotted time frame, or else they will then lose their right to apply to the Court for a determination on the issue (unless they have a good reason to convince the court to allow them to apply out of time).
As stated above, the time limit to make an application for a determination on the issue of spousal maintenance is: 2 years from the date of separation for de facto couples, and 12 months from the date of divorce for married couples.
Keep in mind, that if you are in a position where you have separated, but not yet finalised a divorce and/or the property settlement, this may have the unintended consequence of leaving the door open years down the track for spousal maintenance claims.
Do I still need to pay spousal maintenance if my ex remarries or starts a new relationship?
If you ex remarries, you will not be required to continue maintenance payments. Your ex will need to notify you without delay of the date of the intended re-marriage so that you can make arrangements to cease payments from that date.
If your ex is in a de facto relationship, the financial circumstances relating to the cohabitation will be taken into account when the court makes a spousal maintenance order.
Otherwise, if your ex enters into a de facto relationship after spousal maintenance orders have been made, you can apply to the court to modify the order, on the grounds that since the order was made, the other party has entered into a stable and continuing de facto relationship or the court may discharge the order, if it considers the circumstances amount to “just grounds”.
What happens on death of a party?
Spousal maintenance will cease on the death of either the payer, or the recipient, of spousal maintenance.
Can the spousal maintenance be by way of one lump sum, or a transfer of an asset such as the marital home?
Yes, spousal maintenance can take the form of a lump sum or transfer of asset (or a percentage of the asset) such as the marital home. Otherwise, it can be by way of a re-occurring periodic payments.
These are all issues to be considered when determining spousal maintenance.