Spousal Maintenance

Spousal maintenance is quite different to child support, which is intended for the support of the children and is governed by the Child Support Agency.

Spousal maintenance is a payment by one spouse to another, usually made weekly or monthly, to provide for the necessary financial needs of the former husband or wife, where they are unable to support themselves after separation.

You can apply for spousal maintenance even if you are not seeking any other property settlement or getting a divorce. Essentially, the extent of the support depends on the following:

  • One spouse (the applicant) is unable to adequately meet his or her own reasonable needs; and
  • The other spouse (the respondent) has the capacity to pay.

When deciding any financial disputes after a divorce, the Court bases its decisions on the general principles set out in Sections 79(4) and 75(2) of the Family Law Act 1975. In summary, the judicial officer will try to decide on what is most fair and equitable, based on the following information (for both spouses):

  • Your income, property, financial resources and debts
  • Your age and health (which determines future requirements)
  • Your ability to earn, and whether this has been affected by the marriage
  • What is considered to be a suitable standard of living
  • Whether the children live with you or your former spouse.

Spousal maintenance is not automatic, and often is considered as part of an overall settlement of financial matters.

It is necessary that both parties attempt to reach an agreement outside of court, before filing an application for spousal maintenance orders. When spousal maintenance applications are filed with either the Family Court or the Federal Magistrates Court, both parties are ordered to undergo “pre-action procedures” including participation in a dispute resolution.

In rare cases, such as situations involving urgency, child abuse, family violence or fraud, the Court may accept that it is not possible or appropriate for the pre-action procedures to be carried out.

Applications for spousal maintenance must be made within 12 months of your divorce becoming final. Later applications require special permission from the court, but this is not always granted.

Because maintenance is determined on a “no-fault” basis it does not matter who or what caused the breakdown of the marriage.

The fact that the person claiming maintenance was the one who left the marriage does not mean they are not entitled to maintenance.

Unlike child support there is no government agency that sets the amount of or collects the support. For spousal maintenance to be paid you need an agreement between the two of you or a court order.

If a person is in receipt of a pension or allowance it does not mean that a Court will decide that they have a lesser need for assistance.