Spousal Maintenance in Australia – A Short Guide
Spousal maintenance is a crucial element of family law in Australia, designed to provide financial support to one spouse or partner after the breakdown of a marriage or de facto relationship. Unlike child support, which is explicitly for the upbringing of children, spousal maintenance is specifically aimed at ensuring that a financially dependent partner can maintain a reasonable standard of living after separation or divorce. This article explores the legal definitions, the process for applying and how lawyers can assist individuals in spousal maintenance cases.
Definition of Spousal Maintenance
Spousal maintenance refers to the financial assistance one party provides to their former spouse or de facto partner, who is unable to adequately support themselves after the relationship ends. Under the Family Law Act 1975, the responsibility for spousal maintenance arises when one partner cannot meet their reasonable needs and the other has the capacity to pay.
Spousal maintenance can be paid either as a lump sum or in regular payments (weekly, monthly, or otherwise). It differs from property settlements, as the latter focuses on dividing the couple’s assets, while spousal maintenance is ongoing support.
The key principle governing spousal maintenance is that both parties have a duty to support each other, even after separation or divorce, provided one spouse or partner has a demonstrated need and the other has the capacity to meet that need.
Alimony vs spousal maintenance
These terms mean the same thing, but ‘alimony’ is an American term not commonly used in Australia.
The Legal Basis
In Australia, the right to claim spousal maintenance is embedded in the Family Law Act 1975. Section 72 of the Act establishes the entitlement to spousal maintenance, stating that a party has a right to financial support if they are unable to adequately support themselves due to:
- Caring for a child of the relationship
- Age or physical or mental incapacity
- Any other adequate reason for financial need.
The obligation to pay spousal maintenance applies to both married couples and de facto relationships. However, there are specific time limits for bringing a claim:
- For married couples, the application must be made within 12 months of a divorce being finalized.
- For de facto couples, the application must be made within two years of separation.
If these time limits are exceeded, the court may still consider the application if the applicant can demonstrate hardship or exceptional circumstances.
Types of Spousal Maintenance
- Urgent (Interim) Maintenance: This is granted when one party requires immediate financial assistance before the final hearing. It is generally awarded for short-term needs while waiting for a final resolution.
- Final Maintenance Orders: These are the orders made after all the evidence is considered at the final hearing. The court decides on the amount and duration of maintenance to be paid, considering the financial situations of both parties and their future needs.
Factors Considered by the Court
The court considers a range of factors before deciding on the amount and duration of spousal maintenance. These include:
- Income and Financial Resources: The court will examine both parties’ financial capacity and circumstances, including income, assets, financial obligations and their ability to earn a living to cover reasonable expenses. The spouse seeking maintenance must demonstrate that they are financially disadvantaged compared to their former partner.
- Age and Health: The age and health of both parties are critical in determining spousal maintenance. A party unable to work due to age or illness is more likely to receive maintenance.
- Capacity to Work: The court will assess the ability of the applicant to secure gainful employment, considering their skills, education, work experience and whether they need to care for children.
- Standard of Living: The court aims to ensure that the applicant can maintain a similar standard of living to what they enjoyed during the relationship. However, this is subject to the other party’s financial capability.
- Childcare Responsibilities: If the applicant is caring for a child from the relationship, especially a young or disabled child, this significantly affects their ability to earn an income. The court will take this into account.
- Duration of the Relationship: The length of the marriage or de facto relationship is also relevant. In long-term relationships, the financially weaker party may have sacrificed career opportunities, making them more likely to receive spousal maintenance.
The Legal Process for Applying for Spousal Maintenance
The process for applying for spousal maintenance begins with filing an application with the Family Court of Australia or the Federal Circuit and Family Court of Australia. The following steps are involved:
- Lodging an Application: The applicant must file a formal application for spousal maintenance with the court, outlining their financial needs and the reasons why spousal maintenance is required. This must include a detailed statement of income, expenses, assets and liabilities.
- Serving the Application: The application must be served on the other party, who will then have the opportunity to respond, providing their financial details and reasons why they agree or disagree with the application.
- Court Hearing: If both parties cannot reach an agreement, the case will proceed to a court hearing, where the judge will examine all the evidence and make a decision. This includes reviewing financial records, hearing testimonies and considering expert evidence if necessary.
- Decision and Enforcement: Once the court makes a decision, the maintenance order will specify the amount and terms of the spousal maintenance payments. If the payer defaults on their periodic payments, the recipient can apply for enforcement through the court.
The Role of Family Lawyers in Spousal Maintenance Cases
Navigating spousal maintenance applications can be complex, as it involves detailed financial disclosures, legal arguments and often emotional tensions. Lawyers play a critical role in ensuring that the legal rights of both parties are protected and that a fair outcome is achieved. Here’s how lawyers can help:
- Providing Legal Advice: Lawyers can provide crucial legal advice about your entitlements and obligations, helping you understand whether you have a valid claim for spousal maintenance or if you’re likely to be liable for payments.
- Negotiating Settlements: In many cases, lawyers can help both parties reach a negotiated settlement without going to court. This can save time, legal fees and emotional stress.
- Drafting Agreements: Lawyers ensure that any spousal maintenance agreements are legally binding and clearly outline the terms of payment. This reduces the chances of future disputes.
- Representation in Court: If the matter proceeds to court, having a skilled lawyer and Barrister specialising in this area of the law is essential for presenting a strong case, gathering the necessary evidence and ensuring all legal procedures are followed.
- Enforcing Maintenance Orders: If a maintenance order is not followed, lawyers can assist in enforcing the order through the legal system, ensuring the recipient receives the financial support they are entitled to.
Getting help with spousal maintenance
Getting maintenance from a spouse plays a vital role in providing financial support to those who are economically disadvantaged after the breakdown of a marriage or de facto relationship. Understanding the legal process and working with experienced lawyers can help you navigate these claims successfully, ensuring a fair and just outcome for both parties. Whether seeking or contesting spousal maintenance, legal advice and assistance ensure that the process is managed efficiently and that the best possible resolution is achieved.
Velos & Velos Lawyers has been assisting clients with family law matters for over 40 years, including applications for spousal maintenance. With a limited period to apply, it’s important to get advice as soon as possible. We’re here to help with your urgent requirements.
Contact us on 03 8379 1000 or use the Contact Us link below for an initial discussion about your individual circumstances and how we can assist you.
As family lawyers in Melbourne, we can assist you with a range of family legal matters, including:
- Property Settlement – learn more about our services as Property Settlement Lawyers in Melbourne.
- Wills and Estates – learn more about our services as Wills and Estates Lawyers in Melbourne.
- Family Law – visit our Family Lawyers Melbourne page for a complete description of our family law services.
