Spousal Maintenance

What is Spousal Maintenance?

If one spouse or de-facto partner is unable to adequately support themselves financially however their spouse or de-facto partner has financial capacity to provide this support, then the spouse or de-factopartner may be eligible to apply for spousal maintenance depending on the circumstances (s 72 and 90SF of the Family Law Act 1975 (Cth))

When can an application for spousal maintenance can be made?

An application for spousal maintenance has to be made within 1 year of the party's divorce or within 2 years of separation for de-facto couples. Any applications filed after this time period will need to seek the Court's permission addressing a variety of issues outlining reasons for the delay and hardship.

What needs to be established?

In order for one party to establish a need for spousal maintenance they must prove they are unable to maintain themselves by virtue of age or health affecting one party's ability to secure gainful employment, obligation to care for a child or children and any other adequate reason (s 72 and 90SF of the Family Law Act 1975 (Cth)). The party seeking to apply for spousal maintenance must then demonstrate a capacity for their spouse or de-facto partner to provide this financial support for the shortfall in their expenses.

What does the court consider in a spousal maintenance application?

The Court also considers the parties age, state of health of each of the parties, income, property and financial resources of each of the parties, commitments of each of the parties towards themselves and the children, eligibility to pension, allowance, the effect of spousal maintenance orders on the parties, the duration of marriage when considering an application for spousal maintenance (Section75(2) of the Family Law Act 1975 (Cth)).

When do spousal maintenance orders cease?

Spousal Maintenance orders made by a Court can cease if the following apply according to Section 82 of the Family Law Act 1975 (Cth):

  • Death of the party;
  • Death of the person liable to make payments, unless the court ordered otherwise or if the order was made prior to the operation of the Family Law Amendment Act1983( Cth);
  • Remarriage of the party having the benefit of the maintenance order, unless the court order otherwise.

It must be noted that in circumstances where the party having benefit to the maintenance order enters into a de-facto relationship but does not marry, an application to the court may be made for the Court to discharge the order.

What types of spousal maintenance applications are there?

Spousal maintenance may be ordered by the Court as a lump sum payment or regular payments or both depending on the situation and the circumstances of the parties. The Court may also consider urgent spousal maintenance applications as a stop-gap until a further hearing of the matter or further evidence for the Court to consider where there is a pressing need for urgent financial assistance. Interim spousal maintenance on the other hand may be ordered until a fixed time period or pending further order until the Court determines the matter on a final basis.

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