When experiencing the emotional journey of separation, it is easy to overlook spousal maintenance, and, in some cases, people are not aware that it exists. They do not know that they are entitled to apply for spousal maintenance and receive spousal support payments from a former partner or that they may have to pay maintenance. There are two types of this form of maintenance which is dealt with by the family court or the federal circuit court. The Family Law Act of 1975 indicates that a person has a responsibility to assist their spouse financially if that person cannot satisfactorily support themselves. There is a mutual duty present on both parties to support each other as far as possible. Spousal maintenance applies in all areas of Australia.
What Is Spousal Maintenance?
The weekly upkeep paid by one from their income to the spouse to support them is called spousal maintenance. This payment recognises that both parties’ mutual obligation in a marriage or de facto relationship is to maintain or support the other even after the relationship has broken down. Spousal maintenance is separate from child support, of which most couples are aware. Spousal maintenance is similar as it is maintenance provided to support a former partner.
Two Types Of Applications
You can apply for spousal maintenance. There are two types of spousal maintenance that can be made either in the Family or Federal circuit court.
The first is Spouse maintenance which refers to financial support that is paid to someone who is party to marriage by their previous husband or wife. This payment is made where one partner is unable to support themselves adequately.
The second is De facto partner maintenance. This maintenance is the support paid by someone who has been party to a de facto relationship that has now broken down. The maintenance in the form of financial support is paid to the former de facto partner if they cannot support themselves sufficiently.
In both cases, the amount of maintenance depends on what the other party can afford to pay.
Who Makes The Decision?
The court generally decides spousal maintenance, but parties involved do not have to go to court. Those involved have other options to sort out spousal maintenance, including consent orders or binding financial agreements.
It is not an automatic right that someone will gain spousal maintenance. The person who is applying for maintenance has to establish that they cannot adequately support themselves, that they are applying for reasonable expenses and that the other person can support them. They consider several areas to decide the needs of the applicants and the capacity of the ex-partner to pay, including:
a. Your age and state of health of the party applying.
b. The length and impact of the marriage
c. Your ability to work or capacity to gain employment.
d. Your income, financial resources and property.
e. What is an acceptable or suitable standard of living?
f. If the marriage has impacted your ability to earn an income.
g. With whom the children, if there are any under the age of 18, will live.
h. Any existing financial agreements.
i. Any child support being paid or that is payable.
J. The eligibility of the parties for benefits, a pension or allowance.
k. Rights of any creditors.
Consent orders made by the family court require the agreement of both of the parties. People can apply to the family court when they have reached an agreement for consent orders. It is when the parties cannot agree that they need to get the support of a lawyer.
Binding Financial Agreements
Binding Financial Agreements or BFA’s are becoming increasingly common in Australia. A BFA is an agreement that allows both parties to enter a binding agreement on how to secede their assets. The contract sets out arrangements regarding finances in the event of a breakup of a marriage or de facto relationship. Many couples set up BFA’s before entering into marriage.
When a court has decided that an order for spousal maintenance is payable, they have considerable power. They can make orders that include payment of a lump sum or periodic payments to the plaintiff, the transfer of property for a fixed term, for life or until further notice order. They can put in place reasonable terms and conditions, make a final order or make other orders that they believe are necessary for justice to be done in the case.
Application Time Limits
You only have a certain amount of time to submit a maintenance application after a marriage or relationship breakdown. If a marriage has broken up, then the application needs to be made within 12 months of the divorce becoming final. If a breakdown occurs in a de facto relationship, the application must be made within two years from the date of separation.
You can apply for special permission from the courts if you have not submitted a maintenance application within the time limits, but this is not automatically granted. The applicant is required to establish exceptional grounds for consideration.
Am I Entitled To Spousal Maintenance?
Entitlement for spousal maintenance can depend on the situation and your ability to work and sustain a reasonable standard of living. The Family Law Act under section 72 states that a spouse has the right to maintenance to the extent that the other spouse can sustain them. If, for some reason, your spouse is unable to support themselves due to incapacity or caring for someone else, then they may have adequate reasons not to provide spousal support.
Generally, maintenance is payable to a spouse when one party requires financial support, the other party has the capacity to give help or that circumstances indicate that they should pay maintenance. For example, if one spouse has to stay at home to care for children while the other can work.
How Do I Apply?
The best way to move forward with spousal maintenance is to agree with your ex-partner. In many cases, however, this is not possible. If you cannot reach an agreement, you can file an application in the Federal Circuit Court seeking spousal maintenance orders. To do this, you will need to have created a financial statement that set out your income and expenses. Your ex-partner or ex-spouse will have to file a response then. The court does consider an urgent need for financial assistance and may order that an immediate payment is made while considering a final determination
How Will Maintenance Be Paid
There are varied ways that spousal maintenance can be received, including monthly payments, cash payments or payments of living expenses. Living expenses can include things like mortgage payments or rates, health care or other household expenses. Alternatively, it may be paid as a lump sum.
Spousal Maintenance versus Property Settlement
At times people confuse spousal maintenance and property settlement; however, they are not the same. Property settlement refers to the division of the property, while spousal maintenance relates to income.
When a marriage or De facto relationship breaks up, and the matter goes to court, they will consider spousal maintenance and child support, known as child maintenance, if children are involved, and property settlement. Usually, spousal maintenance is only paid for a limited period after the parties separate to allow the recipient time to organise their financial resources and develop their earning capacity. There are some cases, however, when permanent spousal maintenance is ordered. It is worth seeking legal advice when seeking a maintenance application.
Frequently Asked Questions
1. Can I still get spousal maintenance if I enter a new relationship?
If you enter another relationship, you are still entitled to spousal maintenance unless the court has stated otherwise in the orders.
2. In the court case, will fault in the breakup be considered?
Bad conduct, unfaithfulness and fault are not taken into account in calculating spousal maintenance. Australia’s system is a no fault-based system.
3. Is alimony the same as maintenance.
Alimony is an American legal term. In Australia, we do not use the word alimony; instead, the term maintenance is used in legislation. The circumstances in which you can claim maintenance or alimony are entirely different.
4. Can I apply for spousal maintenance if I was living in a De facto relationship?
You can certainly be eligible to apply for spousal maintenance in Australia if you have been in a De facto relationship. The grounds for claiming spouse maintenance are much the same as for a married couple.