Spousal maintenance
This article was co-authored by Adam Bye, a Law Cadet working in the family law team.
The ending of a marriage or long-term defacto relationship, while being a very emotionally challengingly time, can also be a time of severe financial hardship.
Often people find it almost impossible to make ends meet after the breakdown of a relationship where they have previously been financially dependent on their partner.
This is especially common in circumstances where one party has been out of the workforce for a substantial period of time in order to look after the children of the relationship.
Legal avenues are available to people in these tough financial circumstances that can assistance them through this time, including making a claim for spousal maintenance to The Family Court or Federal Magistrates Court of Australia.
Spousal maintenance is where one person provides ongoing financial support for their former partner in circumstances where that person is unable to adequately support themselves.
Due to recent changes in the Family Law Act 1975, spousal maintenance is now also available to people formerly in a defacto relationships as well as married couples who have separated.
Applications for spousal maintenance for a married person must be made within 12 months of a divorce becoming final. For parties formerly in a defacto relationship, applications for spousal maintenance must be made within 2 years of the breakdown of the relationship.
The Family Law Act 1975 implies a positive duty on a party to a marriage, or defacto relationship, to maintain the other party, if that other party is unable to support herself or himself adequately.
This means that a person has a responsibility to financially assist their former partner, if that person cannot meet their own reasonable expenses from their personal income or assets.
The amount a party may be required to pay to support their former partner will depend on:
- The extent and reason why one party can not support themselves; and
- The capacity of one party to continue to support the other party.
These requirements mean that spousal maintenance is not an inherent entitlement available to every person after the breakdown of a relationship.
When deciding any financial disputes and if spousal maintenance should be paid, the Court relies on the general principles set out in Sections 79(4) and 75(2) of the Family Law Act 1975.
Not every person is automatically entitled to maintenance payments after the breakdown of the relationship. In deciding a maintenance application, a Court will consider a number of factors including:
- The parities age and health;
- The parties income, and if the relationship has affected the parties ability to earn an income;
- The parties property, and financial resources;
- The parties ability to work; and
- The parties suitable standard of living.
For further information or assistance, please contact The Kells Family Law Team.
