Am I Entitled To Spousal Maintenance?

When a relationship breaks down, questions often arise about spousal maintenance.  

In many instances, questions and concerns arise because one of the parties has not earned an income due to circumstances such as them caring for the children or an inability to work for reasons such as ill-health.  

In Australian family law, an order for spousal maintenance compels one party to provide financial support to the other.  The law applies to married and de facto couples.

Spousal maintenance is not the same as child support or adult child maintenance.  This is dealt with by child support legislation and relates specifically to financial support for children.

Here are some of the most commonly asked questions about spousal maintenance.

Who can apply for spousal maintenance?

A person who claims they are in need of financial support from their former spouse or de facto partner can file an application.

What will the Court consider in determining my spousal maintenance?

As a general rule, spousal maintenance is payable if:

  • you are unable to support yourself financially; and
  • the other party has the means (or surplus) to be able to support you.

The Family Court will consider whether the reasons for your application are valid.  It will consider your age and whether you have the physical and mental capacity to be gainfully employed.  It may also consider the standard of living in the context of your particular family circumstances, and other factors such as whether you have care and control of any children.

Essentially, the Court will make a determination based on a person’s needs and the ability of the other to pay.

How much will I be entitled to?

As far as possible, both parties should continue to have the same standard of living and lifestyle post their divorce or separation.  However, the usual reality is that post separation, the cost of running two separate households doesn’t always allow this.

Even if the Court determines that the applicant cannot adequately support themselves, the respondent may only be ordered to pay a level of support that they can afford.  In some instances, the applicant may not have the capacity to pay anything.

Generally, the Court will assess the respondent’s surplus income after their weekly needs have been met and make a determination based on the financial needs and circumstances of both parties.  Each application is assessed on a case-by-case basis.

How long is spousal maintenance payable?

If the applicant is of working age and does not have any restrictions on their ability to find work (such as ill-health), the Court will generally expect them to eventually return to the workforce and support themselves financially.   To this end, the Court will usually order spousal maintenance payments for a limited period of time, relevant to the applicant’s circumstances.  

How do I make a spousal maintenance application?

It is always best to try and reach agreement with your spouse before going to Court.  Engaging a family lawyer from the outset very often avoids the need for Court involvement, thereby saving substantial costs.

Should you wish to file an application, you will need to prepare Court documents, including a financial statement setting out your income and expenses; the respondent will need to do the same.

How is spousal maintenance paid?

The most common way for spousal maintenance to be paid is through regular monthly contributions.  Spousal maintenance can also be paid as a lump sum.

How long do I have to claim spousal maintenance?

If you were married, you have 12 months from the date of your divorce to make an application and two years from the date of final separation if you were in a de facto relationship.

The Court may accept applications outside of these time limits in exceptional circumstances.

This article is intended to shed some light on whether you are entitled to spousal maintenance.  Please note that it is informative in nature and not intended as a legal advice.

Should you be considering separating from your spouse or have any queries about spousal maintenance, it is really helpful to speak to an experienced family lawyer who will look after your best interests.  Whether you are making or defending a spousal maintenance application, West Family Lawyers in Perth have the expertise and experience to advise you successfully and we welcome you to get in touch on 9380 9111 or through our website

Natalie Dimmock

Natalie has worked in family law for 18 years, with skills and qualifications in law, mediation, psychology, management, and company directorship.

Natalie is equally comfortable at mediation negotiating a settlement and in the Family Court advocating for clients. She has experience in all areas of family law, including child support, financial settlements, and parenting issues. She is part of a small team of trusted family lawyers in Perth practising in the Family Court of Western Australia.

Find out more about Natalie here.

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