Family Law

Spousal Maintenance

The Gensis Edge Family Law team can assist you with all aspects of property settlements including Spousal Maintenance.

What is Spousal Maintenance?

A party to a marriage or a de facto relationship is liable to maintain the other to the extent that the party is reasonably able to do so, if and only if, the other party is unable to support himself or herself adequately. Simply put, spousal maintenance is a payment to the financially disadvantaged party to subsidise the costs of their living expenses and needs until they are in a position to support themselves.

There are two types of Spousal Maintenance:

  1. Interim Spousal Maintenance (usually made on an urgent and temporary basis);
  2. Long term Spousal Maintenance (usually made on a final basis for a set period of time)

The primary purpose of Spousal Maintenance is to adjust the disparity between incomes and earning capacities between parties (Husband and Wife or de facto partners) and is usually for a short period. In special circumstances, it may be made as compensation for economic disadvantage, and for a long period if a sufficient adjustment cannot be made by way of property settlement.

Am I eligible for Spousal Maintenance?

If you, or the other party, is unable to support himself or herself adequately, you may apply for Spousal Maintenance in the Federal Circuit and Family Court of Australia. The Court considers the following factors when exercising its general discretionary power in relation to the making of Maintenance Orders as it considers proper:-

  • By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
  • Child support;
  • By reason of age or physical or mental incapacity for appropriate gainful employment; or
  • For any other adequate reason.

Time limitations for Spousal Maintenance

It is important to remember that an application for Spousal Maintenance must be made within:

  • One year from the date the divorce Order becomes final in terms of a marital relationship; or
  • Two years from the date of separation for a de facto relationship.

Otherwise, you will need to apply to the Court for special permission to commence proceedings out of time explaining why you failed to initiate proceedings and showing that failure for the Court to make an Order would cause you hardship.

When will Spousal Maintenance end?

Technically, Spousal Maintenance will last for as long you and the other party both agree that it is required if there is an agreement in place. Maintenance Orders cease in the following circumstances:

  • Upon the death of either party;
  • Upon the death of the person liable to make payments under the Order, unless the Order was expressed to require payments to continue and the Order was made before the operation of the Family Law Amendment Act 1983 (Cth);
  • Upon re-marriage of the payee, unless in special circumstances the Court otherwise Orders.

However, the answer is not quite straightforward in a situation where the payee forms a new de facto relationship. Multiple factors must be considered by the Court when determining a party’s entitlement to Spousal Maintenance upon the payee re-partnering, including but not limited to:

  1. Whether or not the new relationship constitutes a de facto relationship as defined by the Family Law Act 1975 (Cth); and if so,
  2. The financial circumstances of the relationship, for example, whether or not the new couples shared their income pool, the nature of their living arrangements, and the financial circumstances of the new de facto partner.

It may be necessary to apply to the Court seeking to have the existing maintenance Orders discharged or to vary the Orders for payment of Spousal Maintenance.

Ascertaining facts and evidence about the existence of a de facto relationship can be technical and time consuming, please contact our skilful Sydney Family Lawyers on 02 8355 3737 or 1300 559 888 for further information and advice, we are only a phone call away if you need any assistance with applying for Spousal Maintenance.

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