What Do You Need To Know About Spousal Maintenance After Separation or Divorce?


Photo Courtesy: Elizabeth Villalta collected from Unsplash


If your marriage has broken down you might be able to claim spousal maintenance from your ex-partner. According to the Family Law Act, in Australia, a legal or de facto spouse may have the right to claim spousal maintenance after separation. The Family Law Act 1975, states that a person has the responsibility to provide financial assistance to the former spouse or de facto partner if the ex-partner cannot meet his or her reasonable expenses. However, the extent of the support depends on what the other party can afford. Spousal maintenance may be paid periodically or as a lump sum, depending on the circumstances.


In this article, I am going to discuss your rights and obligation related to spousal maintenance or spousal support or alimony if you are getting separated or divorced.


1. Who can claim spousal maintenance?


As a separated spouse, you may have the right to claim financial assistance to the extent that your ex-partner can provide. However, to claim spousal maintenance, you have to prove that you are unable to provide for yourself adequately because of the following factors:

  • You have the care and control of a child of the relationship who is under 18 years of age.

  • Your age or physical or mental capacity is inappropriate for gainful employment.

  • For any other adequate reason.

The Court can order the spousal maintenance if the parties cannot reach an agreement. The length of the periodic spousal maintenance can be varied according to the circumstances of each case.




2. How do you apply for spousal maintenance?


The best way to resolve a dispute about spousal maintenance is through negotiation with your ex-partner. However, if you fail to reach an agreement by yourself, you may have to attend Family Dispute Resolution. It is a quicker and cheaper way to resolve the maintenance dispute. If you still are unable to reach an agreement, you can file an application with the Federal Circuit and Family Court of Australia seeking spousal maintenance orders.



3. How the spousal maintenance is calculated?


While assessing the spousal maintenance, the court considers the needs of the applicant in question and the respondent’s capacity to pay. The amount and nature of the maintenance depend upon the fact of each case. The assessment can be done about a party’s income less their reasonable living expenses. Then the court needs to assess the other party’s capacity to pay spousal maintenance. It takes into account their income and reasonable living expenses among other things and ascertains whether there is a surplus.


The court also considers the following about the parties while calculating spousal maintenance:

  • age and health,

  • income, property, and financial resources of each individual,

  • ability to work,

  • what is a suitable standard of living for the applicant, and

  • if the marriage has affected the applicant’s ability to earn an income.

  • any existing financial support agreement between parties that extends beyond the relationship’s termination,

  • access to other financial support, such as the pension or other government benefits,

  • the income, additional property, and financial resources of the two parties – is one party significantly advantaged over the other?

  • other factors relevant to the relationship.


The court also takes into account with whom the children live if they are under 18 years of age or adult children with disabilities.


While there is no limit to what the courts may consider in a spousal maintenance application, Australia is a ‘no-fault’ jurisdiction. The court will not consider who ended the relationship and why.



4. When can you apply for spousal maintenance?


If you are seeking spousal maintenance, you must apply for a court order:

  • within 1 year from the date of your marriage annulment;

  • within 1 year from the date your divorce order is final;

  • within 2 years from the date when your de facto relationship has ended.


You can only apply to the court for maintenance after this time in special circumstances with the special leave of the court. However, it will be up to the court to grant such permission and it is only granted in special circumstances.



5. How long can you get the spousal maintenance?


If you are receiving regular spousal maintenance, your payments will end in the following circumstances:

  • if you get married again unless there are extraordinary circumstances;

  • if the person paying maintenance dies.


The spousal maintenance may also end if your financial situation improves because:

  • you are in a new de facto relationship,

  • your responsibility for caring for children has changed significantly,

  • your earning capacity increases.

Spousal maintenance applications can be complex. If you are thinking of making an application or if you need to defend one, you should seek trusted legal advice.


If you need to find a Family Law Expert Lawyer who can help you through the legal process, please contact us at www.lawcuircuit.com.au or call us at 0418631798 or email us at bonhi@lawcircuit.com.au. We will connect you to the best Lawyers in Melbourne without any hassle.



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