Spouse Maintenance – What Is It & Who Is Entitled?
By Tanya Mount
Spouse maintenance is financial support paid by one party to a marriage or de facto relationship to the other because the other party is not able to adequately financially support themselves following separation.
Sections 72 (for marriage) and 90SF (for De Facto) of the Family Law Act 1975, provide that parties have a responsibility to financially support their former spouse (Wife/Husband or De Facto Partner) if their former spouse is not able to meet their own reasonable expenses from assets or personal income.
Spouse maintenance payments can either be periodic (i.e. on a weekly basis) or a lump sum amount.
How to obtain spouse maintenance?
Where parties cannot agree whether spouse maintenance is payable and/or the amount of spouse maintenance to be paid, the party seeking spouse maintenance from their spouse can file an Application in the Federal Circuit and Family Court of Australia (“the Court”) seeking an Order that spouse maintenance be paid.
How does the Court determine whether spouse maintenance is payable?
Where a party files an Application for spouse maintenance in the Court, the Court will first consider:-
- Whether the person making the application (the Applicant) is unable to adequately financially support themselves (“needs of the Applicant”); and
- Whether the other person (the Respondent) has capacity to financially support the Applicant (“Respondent’s capacity to pay”).
When determining the needs of the Applicant and whether the Respondent has the capacity to pay spouse maintenance, the Court considers the following:-
- The age and health of each party;
- The income, property and financial resources of each party and the physical or mental capacity of each party for appropriate gainful employment;
- Whether either party has the care or control of a child of the marriage/relationship who is under the age of 18;
- The commitments of each party that are necessary to enable each party to financially support themselves and a child or another person they have a duty to maintain; and
- Any other matter to be take into account under sections 75(2) (for marriage) and 90SF(3) (for De Facto) of the Family Law Act 1975.
How long is spouse maintenance payable?
Orders for spouse maintenance are generally confined to a specific period of time, however, in some circumstances spouse maintenance can be required to be paid indefinitely.
The amount payable and the period of payment of spouse maintenance is dependent on the circumstances of the parties.
Upon the death of either party, any existing Court Order for spouse maintenance will cease. However, where spouse maintenance provisions are contained in a Financial Agreement, those provisions may still be enforced after the death of the payer of spouse maintenance.
Time limits
Where parties are married, an Application for spouse maintenance must be filed within 12 months of a divorce order taking effect. Where parties are not divorced, the limitation period does not start to run.
Where parties are in a de facto relationship, an Application for spouse maintenance must be filed within two (2) years of the date of separation.
Where a limitation period has expired, parties can still seek permission from the Court to start proceedings outside of time. However, whether the Court grants a party permission to bring proceedings outside of time is dependent on the circumstance of that particular matter.
What if I am paying spouse maintenance and my former spouse remarries?
Where a party receiving spouse maintenance marries another person, an Order for spouse maintenance generally ceases to have effect unless otherwise ordered by the Court. The party receiving spouse maintenance has a duty to inform the person paying spouse maintenance without delay of the date of their marriage.
If a party receiving spouse maintenance commences a de facto relationship, spouse maintenance does not necessarily end. The Court can however, when determining the continuation of payments, consider whether or not the new relationship constitutes a de facto relationship and the circumstances of that relationship (ie living arrangements and pooled incomes) when determining the continuation of spouse maintenance payments.
Is there a difference between spouse maintenance and property settlement?
Yes, property settlement relates to the division of assets and liabilities of the relationship whereas Spouse Maintenance is paid for the financial support of a former spouse.
An obligation to pay spouse maintenance does not expire after property settlement orders are obtained, however, whether a party remains entitled to spouse maintenance or has the capacity to pay spouse maintenance following property settlement depends on the circumstances of that particular matter.