Spousal maintenance
Spousal maintenance is financial support that may be payable following separation where one person is unable to adequately support themselves and the other has the capacity to provide financial assistance. Similar provisions apply to eligible de facto relationships.
Spousal maintenance is governed by the Family Law Act 1975 (Cth) (Act) and is separate from child support and property settlement. Whether spousal maintenance is payable will depend on the circumstances of each case.
Am I entitled to spousal maintenance?
There is no automatic entitlement to spousal maintenance simply because you have separated or because one person earns more than the other.
For married couples, section 72 of the Act provides that one party is liable to maintain the other, to the extent that they are reasonably able to do so, if the other party is unable to support themselves adequately because:
- they have the care of a child of the marriage who is under 18 years of age;
- their age, physical or mental incapacity impedes their capacity to work; or
- for any other adequate reason.
How a court determines spousal maintenance applications
In determining a spousal maintenance application, the court considers a range of matters relating to the circumstances of the parties, including:
- their age and state of health;
- each person’s income, property, financial resources and financial commitments;
- each person’s capacity to earn a living;
- whether either party has the care of a child under the age of 18, including the need to provide appropriate housing for that child, and their responsibilities to support any other person they have a duty to maintain;
- the parties’ standard of living;
- the effect of any family violence on a party;
- if either party is cohabiting with another person and the financial circumstances related to that;
- whether the payment of maintenance would assist the person seeking maintenance to undertake education or training, establish a business or otherwise obtain an adequate income; and
- any other relevant fact or circumstance.
For eligible de facto relationships, similar maintenance principles apply under Part VIIIAB of the Act. The court considers several matters including, whether one party is unable to adequately support themselves and whether the other is reasonably able to provide financial support, together with the relevant considerations in section 90SF of the Act.
The outcome of each matter will depend on the circumstances of each party and the particular facts of the case. Arnold Hills can assess your circumstances and advise you on whether you may be entitled to receive, or may be required to pay, spousal or de facto maintenance.
Spousal maintenance orders
Spousal maintenance is often dealt with at the same time as a property settlement. However, the Federal Circuit and Family Court of Australia can also make maintenance orders on an interim or urgent basis where financial assistance is required before the parties’ broader financial matters are finally determined.
Where final maintenance is being determined together with a property settlement, the property application is generally determined before the spousal maintenance application.
Interim spousal maintenance
An interim maintenance order may be made by the court to provide financial support while the parties’ broader financial proceedings are being determined. An interim order may operate for a specified period, until a particular event occurs or until further order of the court. An application for interim maintenance is different from an application for urgent maintenance and a different process applies. Each matter is unique and therefore the amount and durations of any interim spousal maintenance order will depend on the facts and circumstances of the parties.
Urgent spousal maintenance
Some people require urgent spousal maintenance after separation as they no longer have access to the same level of financial support that they had during the relationship. Under section 77 of the Act for married couples, and section 90SG of the Act for de facto couples, the court has the power to make an urgent maintenance order.
An urgent maintenance order may be made where a party is in immediate need of financial assistance and it is not practicable for the court to immediately determine what maintenance order, if any, should be made.
An urgent maintenance order is a temporary measure pending the determination of the maintenance proceedings. The court may order periodic payments or other sums that it considers reasonable, pending the determination of the maintenance proceedings.
Time limits for spousal maintenance applications
The following time limits generally apply to maintenance applications:
Married couples
You do not need to be divorced before applying for spousal maintenance. If a divorce order has taken effect, an application for spousal maintenance must generally be commenced within 12 months from the date the divorce order takes effect.
De facto relationships
For parties to an eligible de facto relationship, an application for de facto maintenance must be commenced within two years of the breakdown of the relationship.
If the relevant time limit has expired, you will generally need leave of the court to commence proceedings out of time. Strict requirements apply. Arnold Hills can advise you on and assist you with any limitation period issues.
When does spousal maintenance end?
A maintenance order may cease, or may be varied, suspended or discharged, depending on the terms of the order and the circumstances. This may occur, for example:
- if either party dies;
- if the party receiving spousal maintenance married or remarries (unless the court otherwise orders in special circumstances);
- when the period specified in the court order ends;
- if a party applies to the court to vary, suspend or terminate the arrangement due to a significant change in circumstances and the court considers it appropriate to make new orders.
Speak with Arnold Hills, spousal maintenance lawyers in the Hills District and Sydney
Questions about financial support following separation can create significant uncertainty for both the person seeking maintenance and the person being asked to pay it. At Arnold Hills, we provide clear advice so that you understand your position, your options and the steps available to resolve your maintenance matter.
Arnold Hills assists clients throughout the Hills District, including Castle Hill, Norwest and Rouse Hill, as well as clients across Sydney, with spousal and de facto maintenance matters.
Contact Arnold Hills to arrange a confidential consultation about your spousal maintenance matter.
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