Spousal maintenance is an area of family law and is the obligation of one party to financially support the other party after separation or divorce. It is not automatic and requires either agreement or an application to the Family Courts.
If you are in receipt of an income test pension, allowance or benefit, or your income is significantly lower than that of your former spouse, you may be eligible to apply for spousal maintenance.
Spousal maintenance is separate to child support. Whilst child support is virtually automatic and calculated according to salary or income, spousal maintenance is not. Whether a party can obtain spousal maintenance depends on a number of factors including:
- Whether you can demonstrate that you have a financial need (you cannot meet your reasonable expenses from your income excluding any Centrelink pension); and
- Whether the other party has the financial capacity to pay spousal maintenance taking into account their reasonable expenses.
The Court will make the monetary order based upon exactly what is fair to both individuals. Spousal maintenance is determined by your level of need and their capacity to pay; you will not receive an order for a spousal maintenance payment which is greater than your financial needs.
The Court will, however, take into consideration factors such as each party’s:
- Income, expenses, assets, liabilities and financial resources
- State of health
- Ability to earn an income and, if so the amount of that earning capacity compared to the actual income being earned
- The standard of living that is considered reasonable in the circumstances
- Whether you have the care of any minor children
Applications for spousal maintenance should be made within a year of your divorce becoming final or within two years from the date that your de facto relationship ended if you separated after 1 March 2009. If you have missed these deadlines, it is very important to seek immediate legal advice as, in some case, extensions of time for late applications can be brought with the authorisation of the Court.
Please contact our expert family lawyers if you would like any further advice on spousal maintenance on 1800 329 090. If you have a question, want further information or would like to speak to someone, make an enquiry now and we’ll be in touch with you very soon.