Everything You Need to Know About Spousal Maintenance
Very few people think of divorce when getting married and even fewer have considered how spousal maintenance might affect them in the event of a divorce.
Many people don’t realise that they may be required to pay or be entitled to financial support after a divorce, or what the process is for seeking spousal maintenance or determining maintenance payments to a former partner.
Michael Conley Lawyers are expert family lawyers with years of experience in navigating the emotional and financial difficulties of divorce. This guide to spousal maintenance in Australia will explain what you need to know about this facet of family law if you are seeking to apply for spousal maintenance or believe you may be subject to a spousal maintenance order.
What is spousal maintenance?
Spousal maintenance is a form of financial support ordered to be paid to a separated or former partner. Spousal support is the recognition in a marriage or de facto relationship of the mutual obligations of both parties to maintain each other and applies across Australia.
Maintenance is the legal term we use in Australia to reference financial support. Much like child maintenance (also known as child support) is a payment determined to adequately support dependents after a separation/divorce, spousal maintenance is financial support for a former partner – you may also be familiar with the American term ‘alimony’, though this term is not used in Australian family law.
Section 75 Family Law Act
Section 75 of the Family Law Act 1975 considers matters related to spousal maintenance in Australia.
Factors or matters considered under section 75 for informing spousal maintenance in Australia include:
- Income and the ability to earn an income of both parties
- Property
- Finances
- Which party has care or control of a child of the marriage under the age of 18 years old
- Commitments relating to support of themselves, a dependent, or another person
Is spousal maintenance mandatory?
The short answer is no, spousal maintenance is not mandatory or automatic in Australia. If you believe you will require financial support for reasonable expenses and you believe your former partner is capable of providing that support while covering their own reasonable expenses, then you can apply for spousal maintenance.
In the application, you will need to establish that you are unable to support yourself adequately and that the other party is reasonably able to financially support you. To ensure you provide as much applicable evidence as possible, you should seek legal advice regarding you and your former partner’s incomes, earning capacity, and what is considered reasonable living expenses that financial support could help cover.
Who is entitled to spousal maintenance?
Either spouse who can prove they cannot support themselves on their existing income and do not have the capacity to increase their income can apply for spousal maintenance if they have been divorced less than 12 months or they are still married but are separated.
Does spousal maintenance apply to a de facto relationship as well?
Yes! Couples that were living in a de facto relationship are able to claim a form of spouse maintenance in Australia.
The Family Law Act 1975 defines a de facto relationship in Section 4AA as two people, who may be of the same or opposite sex, living together as a couple on a genuine domestic basis.According to the Federal Circuit and Family Court of Australia, de facto couples can apply for De Facto Maintenance. The grounds to claim De Facto Maintenance are essentially the same whether you are married or living in a de facto relationship, except you must apply for maintenance orders within two years (instead of the 12 months for married couples) of the relationship break down.
How is spousal maintenance calculated?
There are a wide variety of factors that are taken into consideration when determining spousal maintenance in Australia. There are not any accurate tools, as there are too many variables, however, you can make an estimate as to what your spousal maintenance payments could be.
Essentially, the Court will award spousal maintenance based primarily on your taxable income and any other relevant financial circumstances, such as assets for example. From your taxable income, deduct how much child support you pay (if any) and all your reasonable expenses, and map these incoming and outgoings as a budget for the next year.
Working with an accountant to prepare this financial information can be better than attempting to do it yourself, as there may be a number of things that could be considered reasonable expenses that you may not be aware of or might forget about.
Once you have these details, discuss them with an experienced family lawyer to assess your capacity to provide financial support and how to support a resolution that is beneficial for both parties throughout legal proceedings.
How long does spousal maintenance last in Australia?
Spousal maintenance can be regular payments, made on an ongoing basis while divorce proceedings are being finalised, or it can be paid as a single lump sum (usually paid at the end of the property settlement).
There is the possibility that the spousal maintenance order is given a specific time period and end date, while they can also be ordered to be indefinite. The time factor will vary depending on the circumstances of you and your former partner.
Spousal maintenance will also come to an end if a new spouse or new de facto partner becomes a consideration. If the party receiving spousal maintenance payments remarries, they will generally not be entitled to spousal maintenance.
For former de facto couples, if the party receiving de facto maintenance enters a new de facto relationship, the Court will take into consideration the shared financial resources between the former partner and their new partner to determine if they are still eligible for maintenance payments.
The Role of a Family Lawyer in Divorce & Spousal Maintenance
The role of family law experts, like the family lawyers at Michael Conley Lawyers, is to assist clients in navigating the complexities of divorce and separation, as well as the financial aspects of family law matters.
Family Court requires you to submit applications and various forms to begin and move proceedings along, and these all have strict time limits to adhere to as well. This can create a lot of pressure and stress for clients, at an already emotionally and financially difficult time.
Our role is to assist clients through the process, help collect appropriate evidence, submit applications and forms to the Court, determine property and financial resources, and mediate on behalf of the client to reach an efficient and beneficial resolution.
If you are seeking spousal maintenance or are concerned the other party is seeking maintenance, the best thing you can do is to seek legal advice as soon as possible. Michael Conley Lawyers have decades of experience in family court and are a dedicated family law firm – contact us today on (02) 9223 5299 or email lawyers@michaelconley.com.au to book a consultation.