Spousal Maintenance During Marriage

Spousal Maintenance During Marriage

Spousal Maintenance During Marriage

When a relationship breaks down, separated partners must adapt to a new lifestyle, which can result in additional financial pressure. Parties in a de facto relationship or marriage may be required to maintain their former partner if they cannot adequately support themselves.

Find out more about spousal maintenance, who is eligible, the type of payments available, and what factors the court will consider before making consent orders.

Let’s take a closer look.

What Is Spousal Maintenance?

Spousal maintenance is financial support paid to a de facto partner, husband or wife after a divorce or separation for individuals who do not have sufficient income.

Provisions within the Family Law Act help ensure that an individual has a responsibility to help their former spouse by providing financial assistance for some time. The act states that in certain circumstances, a former partner must maintain the other reasonably if they can do so.

Spousal maintenance is not child support/ Spousal or de facto maintenance supports a former partner, and child support caters specifically for the children’s needs. Both of these obligations are legal obligations as stated in Australian Family Law.

Who Is Eligible For Spousal Maintenance?

The Family Law Act 1975 states that either party in a de facto relationship or a marriage may be liable to: financially support the other if they can do so themselves.

Divorcing a spouse or ending a de facto relationship does not automatically entitle a person to spousal maintenance. Some factors must be considered, such as affordability, current living expenses and capacity to pay.

A person must prove that they can not adequately support themselves and that their former partner has the financial capacity to pay.

Either party in a marriage or de facto relationship may be liable to pay spousal support, especially when there is a significant difference in personal assets, working capacity or parental responsibilities. One parent may be the primary caregiver for their children, which can significantly impact their earning capacity.

What Are The Different Types Of Spousal Maintenance Payments?

Depending on the circumstances, spousal maintenance payments can be provided on an ongoing or periodic basis. The court will order the most appropriate type of payment depending on the needs of the receiving party.

1. Periodic Payments

In most cases periodic spousal maintenance orders are for a certain period or until the receiving person can cover their owh living expenses.

The court will determine how long the maintenance payments will be made. In certain circumstances, such as a physical disability or the primary caregiver of children from the marriage, they may grant maintenance to be paid on an ongoing basis.

2. Lump Sum Payments

Lump sum maintenance payments are applicable when the paying party can not make periodic payments. The lump sum payment is generally taken from the marital asset pool and is a once-off amount as determined by the court.

3. Interim Payments

Interim spousal maintenance payments apply when the receiving party requires maintenance immediately after the divorce or relationship breakdown. The court will require evidence to prove that the party can not meet their everyday living expenses and that the paying party has the capacity to make the payments.

These court orders are only temporary.

4. Urgent Spousal Maintenance Payments

Urgent payments are similar to an interim or lump sum payment but are paid immediately, without the need to provide evidence to the court. It caters to parties in urgent need of financial support and does not have the time to wait for other payment options.

How Is Spousal Maintenance Calculated?

In Australia, the amount of spousal maintenance paid can be calculated according to the financial needs of the recipient and the capacity of the person paying. The rate varies depending on the individual circumstances such as living expenses, marital lifestyle, and income. The court will consider various factors when determining the payment amount.

What Factors Will The Court Consider When Making A Decision?

The following factors will be considered by the court when determining how much spousal maintenance is appropriate:

  • The Applicant’s Needs – This may include: age, working capacity, health, physical or mental incapacity, and level of care for children of the marriage.
  • The Capacity to Pay – The financial resources, income and ability to pay will be considered and evaluated.
  • Standard of Living – The court will consider the standard of living that both parties have become accustomed to during their marriage.
  • Marriage Length – A relationship or marriage length can play a factor and influence the degree of financial interdependency.
  • Child care responsibility – How parental responsibilities impact their capacity to earn a reasonable income.
  • Child Support payments – The court will consider whether child support payments exist and their value.
  • Binding Financial Agreement – Are there any agreements in place.
  • Centrelink payments – Is the person eligible for Centrelink support payments.
  • New Relationships – if either person has re-partnered it will affect the needs and financial responsibilities and may end their eligibility to receive maintenance.
  • Other Circumstances – The court will consider other relevant factors that influences individual cases.

How Is Spousal Maintenance Formalised?

Once an agreement is made, it can be formalised in several ways:

  1. Informal Agreement
  2. Consent Orders
  3. Binding Financial Agreement
  4. Combination of the above

Depending on the status of the relationship, and whether both parties are capable of following the terms of an agreement, a decision must be made whether to create an enforceable order or risk receiving no entitlements.

1. Informal Agreement

An informal agreement means that there is no requirement to go to court and that the agreement made is not legally binding. Therefore the agreement can not be enforced, and either party risks receiving no entitlements.

2. Consent Orders

An application for consent orders can be made through the court. A registrar will review the terms of the agreement and create binding court orders. Parties are not required to attend court but are bound by the terms contained within the agreement.

3. Binding Financial Agreement 

Spousal maintenance agreements can be formalised via a binding financial agreement. Sometimes it is called a prenuptial agreement, which may be created before, during or after a relationship has ended. The agreement does not have to be filed in court, but parties must comply with certain requirements for it to be legally binding.

Individuals can avoid paying spousal maintenance by formalising a binding financial agreement instead. Both parties must agree to the terms and should seek legal advice before signing the document.

How Long Does Someone Have To Pay Spousal Maintenance?

Spousal maintenance payments are generally only paid for a limited period, usually once the recipient can financially support themselves. The duration of a spousal maintenance order will vary depending on individual circumstances and factors such as working capacity and significant differences in income. The court considers relevant factors including; financial needs and length of the marriage, and the amount and duration of support may alter as circumstances change.

If either party re-marries enters into a new de facto relationship, or dies, spousal maintenance will end. Additionally, if the financial situation improves, or the child care arrangements have changed. payments will be affected.

In some cases, maintenance orders may state that ongoing financial support is required permanently.

How Do You Apply For Spousal Maintenance?

An application for spousal maintenance can be made at the Federal or Family Court. Spousal maintenance is not guaranteed or automatic. Financial documents stating assets and liabilities, income and expenses must accompany the application, and an affidavit explaining why spousal maintenance is required. A de facto relationship must meet jurisdictional requirements before the court will make an order for spousal maintenance.

Spousal maintenance in Australia can be backdated, to the date of the original application, if the financial needs meet the requirements.

A family lawyer can provide comprehensive legal advice and ensure the application is accurate and filed correctly.

What Restrictions Or Limits Apply?

An application for spousal maintenance must be made within a year from the date of divorce, or two years for de facto relationships. Married couples do not need to wait until their divorce has been finalised, they can apply for spousal maintenance from the day of separation.

It is also possible to apply for spousal or de facto maintenance whilst still married, even when there is no likelihood of divorce, an application can be made at any time.

In certain circumstances, such as it will cause significant hardship, the court may allow parties to apply for spousal maintenance if they have missed the time limit.

Spousal maintenance payments can affect Centrelink benefits, and the recipient must declare payments to comply with reporting obligations.

Spousal maintenance is also tax deductible, the recipient and the paying spouse must declare the income or claim a tax deduction.

What Is The Difference Between Property Settlement And Spousal Maintenance In Australia?

Property settlement relates to the division of assets and property between separated couples. Spousal maintenance does not form part of the property asset pool and must be paid from the parties’ financial resources or income. 

Spousal maintenance provides financial support to a former spouse who can not meet their reasonable living expenses.

What Methods Can Be Used To Resolve Spousal Maintenance Issues?

When separated couples experience spousal maintenance issues, they may be able to resolve the problems through negotiations, which can occur either in writing, verbally or in person. Negotiating directly with each other, without involving legal experts, may be possible, which can save time and money.

Mediation is a popular alternative for dispute resolution in spousal maintenance or parenting matters, as it allows both parties to find common ground and reach an agreement without going to court.

Mediation can be beneficial when an independent dispute resolution practitioner or mediator helps to manage the process, as they can help parties stay focused and cooperate.

In some cases, it may be necessary to consider arbitration to resolve the dispute, which can be more flexible than court proceedings. An independent neutral third party can to help make a decision that is best for both parties. Decisions made by an arbitrator, a former judge or a senior barrister are legally binding.

Summary

Spousal maintenance is financial support paid to a de facto partner, husband or wife after a divorce or separation, that is only paid for a limited period, usually once the recipient is capable of financially supporting themselves. 

Spousal maintenance is not child support, as spousal or de facto maintenance supports a former partner, and child support caters specifically for the children’s needs. Both of these obligations are legal requirements under Australian Family Law.

An application for spousal maintenance can be made at the Family or Federal Circuit Court, it is not guaranteed or automatic. In Australia, the amount of spousal maintenance is calculated according to the financial needs of the recipient and the capacity of the person paying. The rate varies depending on the financial circumstances, such as living expenses, marital lifestyle, and income. The court will consider various factors when determining the payment amount.

If either party re-marries enters into a new de facto relationship, or dies, spousal maintenance will end. Additionally, if the financial situation improves or the child care arrangements have changed payments will be affected.

In some cases, maintenance orders may state that ongoing financial support is required permanently.

FAQs

1. Who Is Entitled To Spousal Maintenance In Australia?

Divorcing a spouse or ending a de facto relationship does not automatically entitle a person to spousal maintenance. Some factors must be considered, such as affordability, current living expenses and capacity to pay.

A person must prove that they can not adequately support themselves and that their former spouse has the financial capacity to pay.

Either party in a marriage or de facto relationship may be liable to pay spousal support, especially when there is a significant difference in personal assets, earning capacity or parental responsibilities.

2. Do I Have To Financially Support My Wife After Divorce?

The Family Law Act 1975 states that either party in a de facto relationship or a marriage may be liable to financially support the other if they can do so themselves.

Spousal maintenance payments are generally only paid for a limited period, usually once the recipient can financially support themselves.

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