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Spousal Maintenance

If you have separated or divorced from a spouse or partner who was financially supporting you during your relationship, then you may be entitled to apply to have that financial support continue after separation by way of spousal maintenance.

What is Spousal Maintenance?

Spousal Maintenance refers to payments made by one spouse or partner to their former spouse or partner where that person is unable to adequately provide for themselves.

The payments can be made periodically or as a lump sum payment, depending upon which method suits the parties involved.

How can I arrange to be paid Spousal Maintenance by my former partner?

If you are able to come to a private arrangement with your former spouse or partner regarding maintenance payments, then you are able to include terms to that effect in financial consent orders along with your other property settlement arrangements. The orders are then approved by the Family Court and become binding.

If you are not able to come to an agreement regarding the payment of spousal maintenance, then you may be able to apply to the Family Court for orders granting you payment.

Who is entitled to Spousal Maintenance?

You may be entitled to maintenance if you were married, and have now separated or divorced; or if you were in a de facto relationship which ended on or after 1 March 2009.

Is Spousal Maintenance available to de facto partners?

Laws granting de facto couples the right to apply for spousal maintenance came into effect in most Australian States on 1 March 2009 (in South Australia the laws commenced on 1 July 2010).

The Family Court may grant an order for spousal maintenance if you can show either:

  • the relationship lasted for at least 2 years; or
  • you have a child together; or
  • a significant financial contribution was made to the other partner’s property during the relationship, which should be accounted for; or
  • your relationship was registered, if required (registration is permitted in Queensland, New South Wales, Victoria, ACT and Tasmania).

You must also be able to establish that your relationship was in fact a ‘de facto’ partnership, by demonstrating that you lived together with your former partner on a ‘genuine domestic basis’. The court will consider a wide range of factors in determining whether the relationship was conducted on a genuine domestic basis, such as:

  • whether you are financially interdependent
  • your living arrangements
  • arrangements for the care of children, and
  • the duration of the relationship.

The laws relating to de facto relationships and spousal maintenance apply to both same sex and opposite sex couples equally. They also apply to multi-relationships, which recognise that a person may be in more than one de facto relationship, or a marriage and de facto relationship.

Further information about de facto property laws, which include provision for spousal maintenance, can be obtained from the Family Relationships Australia site.

How is Spousal Maintenance calculated?

When deciding the amount to be paid to a dependant spouse, the Court will consider how much financial support you need, and weigh that against your former spouse’s ability to make payments. The court will also have regard to:

  • your age, health, income and working ability
  • whether the relationship affected your ability to earn income
  • whether the children of the relationship reside with you, and
  • any child support arrangements.

Time limits

If you are seeking to apply to the Family Court for a spousal maintenance order, then you must do so within prescribed time limits. If you were married, you must apply within one year from the date of finalisation of your divorce. If you were in a de facto relationship, you must apply within 2 years from the date the relationship ended.

You can apply out of time in special circumstances and should seek legal advice if you intend to do so.

When do payments end?

Payments will end if:

  • you remarry, or
  • you no longer require financial assistance, either because you have commenced a new de facto relationship which provides sufficient financial resources, or your employment prospects improve, or
  • your child care responsibilities have changed.

An application will need to be made to the Family Court to have maintenance payments varied or ended.

If you have any questions about the spousal maintenance laws and would like further information about how they apply to you, call us on 1300 636 846 to speak with one of our Family Law experts.

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