What is Spouse Maintenance/De Facto Maintenance?

Sometimes when a relationship breaks down, one party has a legal obligation to support the other financially. According to sections 75 (in relation to marriages) and 90SF (in relation to de facto relationships) of the Family Law Act 1975 (Cth), Spouse Maintenance is a legal obligation imposed on one party to a marriage, or de facto relationship, to provide financial support in circumstances where the other party is unable to adequately support himself or herself.

Are there time limits for applying to the Court for Spousal Maintenance?

As Spouse Maintenance is not automatically granted, you have to make an application to the Court seeking the same and a time limit applies. An application for Spousal Maintenance must be made within: one year from the date the divorce order becomes final; or two years from the date of separation for a de facto relationship. You can ask the Court to make an Order for Spousal Maintenance even if you are not divorced.

You will need the Court’s permission to apply outside of these time limits.

If you have commenced a divorce proceeding or a divorce Order has already been granted, please contact us on 02 8355 3737 for a consultation as soon as possible to avoid the lapse of time limitation.

What does the Court consider when making a decision?

In order to determine the quantum of the Spouse Maintenance, the Court has to consider  two major factors:

A. The needs of the applicant

  • Is the applicant unable to support himself/herself adequately as contemplated by s 72(1) of the Family Law Act 1975 (Cth), and if so, to what extent? (i.e. the gateway requirement)
  • What are the applicant’s reasonable needs?

B. The respondent’s capacity to pay

What capacity does the respondent have to meet a Spousal Maintenance Order, if such an Order were to be made?

A Court exercising the power conferred by s 74(1) of the Family Law Act 1975 (Cth) is obliged by s 75(1) to take into account the matters referred to in s 75(2). Those matters include:

  1. The age and state of health of each former partner;
  2. The income, property, and financial resources of each of the parties;
  3. The physical and mental capacity of each party to obtain appropriate gainful employment;
  4. Whether a former partner has the care of a child under 18 years of age;
  5. What is a suitable standard of living;
  6. Whether the marriage/relationship has affected one of the former partner’s ability to earn an income;
  7. Any child support which has been, or is to be, provided by the liable party under the Child Support (Assessment) Act 1989 (Cth); and
  8. Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

Depending on the individual circumstances, the Court may make maintenance Orders such as: a lump sum payment (either in one amount or in instalments), transfer of property, or a weekly, monthly, yearly or other periodic sum.

If you wish to apply for Spousal Maintenance/De Facto Maintenance, or if you have been served with an application, we can give you legal advice as to whether a maintenance Order is appropriate in your circumstances. Please contact us on 02 8355 3737 or leave a message here, we will help you better understand your rights and responsibilities.