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.
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.
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.
You may be entitled to spousal maintenance payments if:
– you were married and have now separated or divorced, or
– you were in a de facto relationship which ended on or after 1 March 2009.
Historically, the law relating to property and financial settlements for de facto couples
has fallen within the ambit of the states and territories, most of which did not allow
for maintenance claims.
However, most jurisdictions have now relinquished their powers and passed laws so that property
settlements for de facto partners fall under the same Commonwealth laws, and grant the
same rights and obligations, as for married 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.
Now, the Family Court may grant an order for spousal maintenance for you 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 and 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, such as:
– whether you were 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.
When deciding the amount to be paid to a dependant marriage or de facto partner, 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 an income – whether the children of the relationship
reside with you, and – any child support arrangements.
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 1 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 only in special circumstances and should seek legal advice
if you intend to do so.
Spousal maintenance 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 or someone you know has questions about spousal maintenance and would like further
information about how the law applies to you, Go To Court Lawyers operate a Legal Hotline
on 1300 636 846 where you can talk directly to a lawyer 7am – 9pm, 7 days/week.
Your call will be treated with the strictest confidentiality and without judgement.
The lawyer will assess your matter and recommend a course of action.
Should you need a lawyer, even if it is at very short notice, the Legal Hotline staff
will be able to arrange legal representation for you.
You can also request a call back via the website www.gotocourt.com.au and a lawyer will call you
back to assess your matter.
