What is Spousal Maintenance and How Do I Get It?

By 11 September 2019 Family Law
Spousal Maintenance

As family lawyers, we often get questions about spousal maintenance. Clients who have heard about it from family or friends sometimes have misconceptions about what it is. Sometimes they are unsure whether they are eligible for maintenance, or they aren’t sure how to go about getting it. In this post, we’ll address some of those questions and concerns.

What is spousal maintenance?

Spousal maintenance is an entitlement afforded to a legal or de facto spouse under the Family Law Act in certain circumstances. The law allows someone to claim spousal maintenance after separation if:

  • There was a significant disparity in income between the parties at the time of separation; and
  • the person who makes more is capable of providing financial support for his or her former partner; and
  • the person who is seeking financial maintenance can’t support himself or herself for any ‘adequate reason’, or one of the reasons detailed below.

Legally, someone can claim spousal maintenance if they need financial support due to their age, health, or mental illness (if any). Someone who has primary care of a child/children from the marriage can also claim spousal maintenance if they can’t support themselves and the child/children without help.

Spousal maintenance is payable in regular instalments or in one single payment based on the specific circumstances of each case.

Methods for obtaining spousal maintenance

Hopefully, you and your former spouse can reach consensus on spousal maintenance on your own. If that isn’t possible, the only way to get spousal maintenance is to file an application for it in the Federal Circuit Court. Along with the application, you’ll have to provide supporting documents detailing your finances, including your income and expenses. The person you’re seeking spousal maintenance from is also required to provide similar information in response to your request.

In this context, one of the most common questions we get is whether the Court uses a specific formula to determine how much the applicant should get. The answer to this question is, “no”. Instead, it assesses the applicant’s ‘financial need’, and the ability or financial capacity of the person with the greater income to meet it. Based on that, the Court then uses its discretion as to what constitutes a reasonable payment.

Relevant criteria

Specific factors taken into consideration include the following:

  • The age and health of both spouses;
  • each of your incomes, property, financial resources and ability to work;
  • who, if anyone has the care of a child;
  • whether one or both of you are responsible for supporting any other person;
  • whether one or both of you qualify for any social security or superannuation benefit;
  • what constitutes a ‘reasonable standard of living’;
  • how much you, as the applicant, have contributed to the other party’s financial resources;
  • the length of your relationship and the extent to which it has affected your earning capacity as the applicant;
  • any current or future liability for either of you in terms of child support payments;
  • any financial agreements between the two of you;
  • any other circumstances the Court deems worthy of consideration in accordance with Section 76 of the Family Law Act.

The purpose of spousal maintenance

There are also a few more things you should keep in mind. The first is that spousal maintenance is not meant to keep you in a lifestyle that you’ve become accustomed to. In other words, you can’t seek spousal maintenance just because you’re used to living in a luxurious home and driving an expensive car, and you won’t be able to afford it on your own.

Secondly, you, as the applicant for spousal maintenance, must take steps to secure work and become financially self-sufficient. The only exception to this requirement is if you have primary care of young children. This is because you are allowed to assume that role as long as your children aren’t yet in school. In other words, you don’t have to deplete all of your marital assets prior to making an application for spousal maintenance. However, you will probably be required to take the same steps towards financial self-sufficiency as any other applicant once the children are old enough to go to school, unless you can provide a viable reason for being unable to do so.

Deadlines for applying for spousal maintenance

The deadlines for applications for spousal maintenance depend on the nature of your relationship. If you were married, you must file your application within 12 months of the date of your divorce. But if you were in a de facto relationship, you must make the application within two years from the date of final separation.

Failing to meet these deadlines does not necessarily preclude you from making an application. This is because you can request special permission from the Court to file an application after the deadline. However, the Court probably won’t accommodate your request unless you can provide a good reason for failing to file within the original time limit.

Summing up

To conclude, spousal maintenance is a basic entitlement legally afforded to a spouse in a marriage or de facto relationship after separation. Eligibility is based on certain criteria. If you and your former spouse are unable to reach an agreement about spousal maintenance payments, you can apply for it through the Court. In either situation, it is always best to get proper legal advice from a qualified family lawyer before proceeding. Contact us to learn more about how our family law team can help you get the spousal maintenance you deserve on (07) 5571 1450 or admin@twohilllawyers.com.au