Spouse Maintenance

What is spousal maintenance?

Spousal maintenance is an order that requires one person from a former relationship to provide financial assistance to the other. To qualify for spousal maintenance, you must show that you are unable to adequately support yourself and that your former partner has the financial capacity to pay spousal maintenance.

In property settlement matters, preference is given to the ‘clean break’ principle which means that arrangements for the division of property should, if possible, provide finality between the parties. Therefore, spousal maintenance is not always relevant in family law matters as it is preferable that financial affairs are finalised rather than ongoing.

In some circumstances, however, maintenance is justified and in a number of family law matters, is ordered either on an ongoing or interim basis, pending the final determination of a property settlement.

How is spousal maintenance determined?

Spousal maintenance is determined in light of the overall property settlement. As with most family law matters, the parties will need to participate in dispute resolution processes before going to court.

Several principles are considered when determining whether it is just and equitable to order spousal maintenance. A court will take into account:

  • the assets, income, financial resources and liabilities of each party;
  • the age and health of the parties;
  • the parties’ respective abilities to earn an income;
  • the impact the relationship has had on each party’s ability to earn;
  • a suitable standard of living in the circumstances;
  • whether there are children and who they live with / spend time with.

This means that an applicant for spousal maintenance must show firstly, that he / she is unable to adequately support himself / herself and secondly, that the former spouse or partner is in a position to contribute financially after meeting his / her own reasonable living expenses.

Applying for spousal maintenance

An application for spousal maintenance must be made within 12 months of a divorce becoming final or within 2 years after the breakdown of a de facto relationship. Applications for spousal maintenance may be made immediately upon separation. In limited circumstances the court will allow a party to make a late application however there is no guarantee this will be allowed.

An application will need to contain submissions setting out the financial position of the parties, the relationship history in terms of caring for children, and the work capacity of the applicant and respondent. It should take into consideration the immediate and long-term earning capacity of the applicant and respondent.

The application should be supported by evidence demonstrating the needs of the applicant and his or her inability to financially meet those needs. This will include financial statements and, where relevant, medical reports setting out any health concerns and how these impact on the applicant’s earning capacity. Job search diaries and details of any training necessary to re-enter the workforce may also be relevant.

Applications for spousal maintenance must be carefully prepared so that the argument for maintenance is clearly documented and supported with evidence.

Our lawyers can explain the process of applying for spousal maintenance and will provide an assessment of the likely success of your matter before preparing the necessary application and supporting documents.

If you need any assistance contact one of our lawyers at mail@smythfamilylaw.com.au or call 02 7202 2137 for a no-obligation discussion and for expert legal advice.