What is Spousal Maintenance? When will I be Entitled to Spousal Maintenance and How Much Will I Be Paid?

15/06/2020

Separation will usually change the capacity of each party to a marriage or de facto relationship to support themselves and their children.  A lower income (or no income) will cause financial problems.  One income earner may earn more than the other and the need for financial assistance can arise.  Sometimes this need can be immediate and urgent. 

Urgent Application for Spousal Maintenance

The Family Law Act Section 77 provides that in proceedings with respect to the maintenance of a party to a marriage if it appears to the Family Court of Australia or Federal Circuit Court that the other party has an immediate need for financial assistance.

The Family Court or Federal Circuit Court may order the payment pending the disposal of the whole of the proceedings.  The Order could be an order for periodic maintenance or other some payment for example, a lump sum payment.

When Can a Court Order Payment and For How Long?  When Can Proceedings Be Initiated? 

Spousal maintenance can be ordered to be paid before a final hearing of a property case and can be ordered to be paid on an ongoing basis periodically after determination of the property case.  There can be an order for lump sum payments.  Binding Financial Agreements entered into between spouses or de facto partners can also provide for payment of spousal maintenance.  Special maintenance can continue to be paid after divorce and may only cease on the death of the payer or the death or remarriage of the payee. 

Am I likely to be entitled to spousal maintenance?

The Family Law Act sets out the test for entitlement to payment of spousal maintenance.  The threshold requirements are that:

1. The person seeking an order for payment of spousal maintenance must have a present inability to adequately support themselves.
2. The person being asked to pay spousal maintenance must have a surplus of income over their own expenses.  In other words there needs to be a capacity to pay.

What Does Adequately Mean?

Adequately means a standard of living that is in all the circumstances reasonable. 

What Does the Court Take Into Account?

In determining an application for spousal maintenance the Family Court or the Federal Circuit Court will take into account the factors set out in s72(2) for married couples and s90SF(3) for de facto couples. 

Should you have any concerns regarding spousal maintenance or any family law matter at Watson & Watson our experienced Senior Family Law Solicitors can assist you in relation to your Spousal Maintenance Application and address any queries or concerns you may be facing.  Please do not hesitate to contact Richard Watson Senior Family Law Solicitor or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.