Spousal Maintenance 101

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By Chloe Curran

A relationship breakdown can be an emotional time for people directly involved and for those supporting love ones from afar. Having a good understanding of the legal components can assist in minimising any further unnecessary trauma. In some circumstances, the breakdown of a marriage or de-facto relationship can lead to ongoing Spousal Maintenance. We have put together some key points of what you need to know if this situation arises.

How is Spousal Maintenance determined?

The Court looks at two main factors when determining an application for spousal maintenance, including:

  1. Does the Applicant have a need for financial support? In other words, are they unable to adequately meet their own reasonable needs?
  2. Does the Respondent have the capacity to pay? In other words, can they afford to provide for the other party having regard to their own financial commitments?

In determining a person’s need for spousal maintenance, the Court will look at a number of factors, including the person’s age, health, earning capacity, whether they have the care of children, and their financial resources.  A person may be unable to support themselves because they have primary care of young children, or because they are unable to gain full-time employment for example. Spousal maintenance is not designed to keep a person in the lifestyle they were accustomed to during the relationship, but rather to cover a person’s reasonable day to day living expenses.

How long is spousal maintenance payable?

Spousal maintenance may be payable for a specified period, so as to allow a person time to complete a course to enable them to re-enter the workforce, or until children reach school age for example.  In other circumstances, it may be payable indefinitely, until subsequently varied by a Court Order.

Depending on each party’s particular circumstances, spousal maintenance can either be paid in the form of regular payments, such as weekly or monthly, or it can be calculated as a lump sum payment.  In other cases, it may be in the form of a transfer of property.

In order to obtain spousal maintenance, it must either be by agreement between spouses/de-facto couples, or by a Court Order (which involves making an application to the Court).

Is there a time limit for applying?

Yes, if you were married it is within 12 months from the date of your divorce becoming final, and if you were in a de-facto relationship it is within 2 years from the date of your separation. If you do not apply within the time limit, you will need to seek leave of the Court to file out of time.

If you think you may be entitled to spousal maintenance, or that you may be liable for paying spousal maintenance, please contact us on 6212 7600.