When is Spousal Support Denied?

In Australia, the financial support that one spouse provides for another after a separation or divorce is known as spousal support or spousal maintenance. Spousal maintenance is not an automatic right. Rather, individuals must apply to the Federal Circuit and Family Court of Australia (the court) or the Family Court of Western Australia for spousal maintenance, and present a persuasive case for why they require support from their former spouse. This article looks at the grounds for refusing an application for spousal support and the factors that influence these decisions.

Spousal support

Spousal support is financial aid given by one individual to another following the end of their marriage or de facto relationship. The court can order one spouse to provide regular payments or a lump sum to the other party to provide for their reasonable needs. Spousal maintenance is only granted when the applicant meets certain legal criteria.

Under section 72 of the Family Law Act 1975, if a spouse is reasonably able, they must contribute to the maintenance of a former spouse who cannot adequately support themselves. However, the court also has to consider the respondent’s ability to pay spousal support. An applicant may be in financial need and still not receive maintenance if their spouse does not have the resources to support them. In balancing the needs of both parties, the court will consider a significant number of factors including:

• the age and health of each party;
• the financial resources, income and property of each party and their physical and mental capacity to obtain appropriate employment;
• whether either party has care of a minor child of the marriage;
• commitments of each party to support themselves and dependents;
• the eligibility of each party to pension, allowance or benefit, superannuation fund or scheme and the rate of any such pension (though the court must disregard any income tested government allowance);
• the standard of living that is reasonable in the circumstances;
• whether spousal support would increase the applicant’s earning capacity by enabling them to undertake training or education or to establish themselves in a business;
• the effect of any spousal support order on the ability of a creditor to recover a debt;
• the extent to which the applicant has contributed to the income, resources and earning capacity of the paying spouse;
• the duration of the marriage and whether this affected the earning capacity of the applicant;
• the need to protect the applicant’s role as a parent;
• if either party is cohabitating with another person, the financial circumstances around that cohabitation;
• the terms of any property settlement order;
• any child support that is provided or received by either party;
• the terms of any financial agreement that is binding on either party; and
• any fact or circumstance that the court decides should be taken into account for the justice of the case.

Grounds for denying spousal support

There are several circumstances when the court may deny an application for spousal support. There may be legal grounds, factual circumstances, or financial reasons why spousal support is denied.

Firstly, applications for spousal maintenance must be made within 12 months of a divorce or two years from the end of a de facto relationship. While there are limited exceptions, the court may refuse to hear an application for spousal support if it is made after these deadlines. Sometimes couples have a Binding Financial Agreement (BFA) that outlines their financial affairs in the event of separation. The court will typically uphold a valid BFA that waives or limits spousal support unless it was signed under duress, fraud or undue influence.

One of the primary reasons to deny an application for spousal support is because the applicant is capable of supporting themselves. For example, the court would expect a reasonably healthy person of working age to seek employment rather than relying on financial support from their former spouse. Even when an applicant has been away from the workforce for years or has no marketable skills or training, the court will still expect them to make reasonable efforts to obtain employment or reskill for future employment. The court is also likely to deny an application for spousal support if the couple’s property settlement sufficiently provides for the financial needs of the applicant.

The length of the marriage or de facto relationship can also prompt the court to deny an application for spousal support. Generally, the court is less inclined to order maintenance if the relationship was brief, the couple had no children, and they maintained relatively separate finances during the relationship. In these cases, it is assumed that the parties are able to return to their previous financial status without the need for ongoing support. The current relationship status of the applicant can also affect their chances of success when seeking spousal support. While being in a new relationship does not automatically disqualify an applicant, the court may expect a new de facto partner or spouse to support the applicant.

Although an application for spousal support is primarily assessed only on financial need and capacity to pay, the applicant’s conduct can affect their eligibility. For example, the court will not respond favourably if the applicant intentionally conceals assets or otherwise misrepresents their financial situation to improve their claim for spousal support. Moreover, if the applicant’s financial difficulties are self-inflicted, from refusing to seek employment or irresponsible spending, this may influence the court’s decision to refuse spousal maintenance.

In Australia, spousal support is not a guaranteed entitlement. The court attempts to strike a balance between providing necessary financial support and ensuring that it does not place an untenable financial burden on the other party. An application for spousal support may be denied if the applicant is self-sufficient, the marriage was short-lived, or the paying spouse lacks financial capacity. Each case is assessed on its individual merits, and the court has broad discretion to determine whether maintenance is warranted.  Contact Go To Court on 1300 636 846 for further advice on how to make a successful application for spousal support, or any other legal matter.