Spousal maintenance is the obligation of one spouse to provide financial support to the other spouse following the breakdown of a marriage or de facto relationship. The obligation arises where one spouse is unable to meet their reasonable weekly needs (living expenses) from their own income and the other party has the capacity to meet the shortfall.
The obligation to pay spousal maintenance is separate from a property settlement or from any child support obligation. Unlike child support, a party seeking spousal maintenance must make an application to the Court if there is no agreement from the other party. This litigation can be costly and therefore it is essential that you seek expert legal advice prior to commencing any application.
How is spousal maintenance assessed?
A Court will make an Order for spousal maintenance if it can be satisfied that:
- The party seeking maintenance can demonstrate a reasonable need;
- The party seeking maintenance can demonstrate that they are unable to support themselves from their own income due to an incapacity for paid employment or the responsibility of caring for children or another adequate reason; and
- The other party has the capacity to pay maintenance after meeting their own reasonable expenses.
The Court must consider a number of factors when deciding whether to make an Order for spousal maintenance including:
- The age and state of health of each party;
- The income, property and financial resources of each of the parties;
- The capacity for employment;
- Whether either party has the care of any children of the relationship that are under the age of 18yrs;
- The standard of living that is reasonable in the circumstances;
- The duration of the marriage or relationship and the extent to which it has affected the earning capacity of the party seeking maintenance.
What type of Order can the Court make?
Spousal maintenance can be paid in various ways.
If a party is in urgent financial need, the Court can make an order for urgent spousal maintenance without having to conduct a detailed hearing into the parties overall financial circumstances. The party applying for maintenance will need to establish and immediate need for financial support.
An order for interim spousal maintenance can be made if the Court is satisfied that the party seeking maintenance has a need for support prior to a final hearing being conducted. The Court will require affidavit evidence and make a decision following an interim hearing where both parties will have the opportunity to be heard. An order for interim spouse maintenance will remain in place until a further order is made by the Court that discharges it.
Following a final hearing (trial) the Court can make an order for a lump sum payment of spousal maintenance or an order for ongoing periodic payments.
Lump sum orders are generally only made where the Court can be satisfied that the other party has sufficient cash reserves available. More often, an order will be made for periodic payments (on a weekly, fortnightly or monthly basis) for a set period of time.
Is there a time limit for applying?
Yes. Married spouses must make an application within 12 months from the date of a divorce order becoming final.
De facto spouses must make an application within 2 years of the date of separation.
After that time, a party seeking maintenance will need to seek the “leave” (permission) of the Court to make an application. The Court will require evidence as to why the application has been delayed and what hardship will be suffered by the applicant or their children if the application is not granted.
