feedback

25 July 2017 Spouse Maintenance - FAQs

By Monique Robb, Senior Associate

IN BRIEF - What is Spouse Maintenance?

Spouse maintenance is money paid by one spouse or de facto partner to the other spouse or de facto partner, usually on a weekly or monthly basis, to meet his or her reasonable living expenses.


How can I apply for maintenance?

You are not automatically entitled to be paid maintenance.

You can ask your spouse/de facto partner to pay maintenance to you if you have separated. If they refuse to pay maintenance voluntarily, you need to file an Application at the court, supported by an affidavit. Your lawyer can and will assist you to make the application for maintenance if it is appropriate in your particular circumstances.

When will the court make an order for maintenance?

A court will only make an order for maintenance if it is satisfied that:

  1. You have a need.This means there is a shortfall between your income, (from all sources and taking into account their property and financial resources) and your reasonable living expenses (as opposed to expenses for any children); and

  2. Your expenses to support themselves are reasonable "under the circumstances" (i.e. having regard to the cost of maintaining 2 households on the income that previously sustained 1 household); and

  3. the other party has the capacity to pay, having regard to their reasonable living expenses, along with any child support they might be paying.

When does maintenance stop?

Maintenance (if it is awarded at all) stops:

  1. immediately upon the recipient remarrying;

  2. is also likely to stop or be reduced (upon court application) upon the recipient commencing a de facto relationship; or

  3. Upon the Court ordering that it is no longer to be paid.

How long will I receive maintenance for?

Every case is different.  In many cases maintenance will only be ordered for a limited time, for example to allow the recipient time to complete a course which will assist them to obtain employment. In most cases, the Court will order maintenance only until such time as parties obtain a property settlement, or, for a set period following the receipt of a property settlement.
It is unusual to obtain long-term spouse maintenance, and very rare for the Court to order spouse maintenance without an end date.

Will maintenance pay for children's expenses?

No.  Maintenance is only to cover your reasonable expenses.

Maintenance is separate from child support, which is intended to meet children's expenses. It is also separate from "Child Maintenance" which is maintenance paid by a parent for an adult child in certain circumstances.
You should discuss with your lawyer as to whether you should also seek that the Court make orders in respect to child support, to meet the costs of your children.


 

Monique Robb, Senior Associate  |  Phone: +61 2 9233 5544  |  Email: mcr@swaab.com.au

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

Back to publications
Association Memberships
Tristan Jepson Memorial Foundation
  • 2017 - Winner Lawyers Weekly 30 Under 30 Awards
  • 2017 - Finalist Lawyers Weekly Australian Law Awards
  • 2017 - Finalist Lawyers Weekly Women in Law Awards