Spousal maintenance is financial support paid by a party to a marriage to their husband or wife (or their former husband or wife) in circumstances where they are unable to adequately support themselves.
De facto spouse maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.
The Family Court or Federal Magistrates Court can deal with spouse maintenance applications. If you are seeking de facto spouse maintenance, you need to meet certain criteria. See ‘What about de facto partners?’ below for more information.
Under the Family Law Act, a person has responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.
Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.
What does a court consider?
Maintenance is not automatic. In deciding a maintenance application, a court considers the needs of an applicant and the respondent’s capacity to pay. A court considers the following about both of you:
- your age and health
- your income, property, and financial resources
- your ability to work
- what is a suitable standard of living
- if the marriage has affected your ability to earn and income
A court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.
What about de facto partners?
If you have been in a de facto relationship and are considering making an application to the Court for maintenance orders, you should read Property division when de facto relationships break down – new Commonwealth law for separating de facto couples. This fact sheet will you give information about whether or not you are eligible to make such an application.
If you live in Western Australia the law may be different.
What if you start a new relationship?
You are not entitled to maintenance if you marry another person. If you start a new de facto relationship the court will have regard to the financial relationship between you and your new de facto partner when considering whether you are able to support yourself adequately.
Is there a time limit for applications for spouse maintenance?
Applications for spouse maintenance if you are party to a marriage must be made within 12 months of your divorce becoming final.
Applications for de facto spouse maintenance must be made within 2 years of the breakdown of your de facto relationship.
If you do not apply within these time limits, you will need special permission of a court. This is not always granted.
How do you apply for maintenance/respond to an application?
View the information in the section titled ‘If you don’t agree about property and money matters – how do you apply.’
If you would like us to help you more with Spouse Maintenance please contact us.