Fam­i­ly Law | Spouse main­te­nance: 10 fre­quent­ly asked questions

What is spouse maintenance?

Spouse main­te­nance is mon­ey that is paid by one par­ty to a mar­riage or de fac­to rela­tion­ship to the oth­er par­ty, to sup­port them finan­cial­ly after sep­a­ra­tion. It can be paid as agreed between the par­ties, oth­er­wise the Fam­i­ly Court can order pay­ment either peri­od­i­cal­ly (such as week­ly, fort­night­ly or month­ly) or as a lump sum.

Do I have to wait for the divorce?

No. After sep­a­ra­tion the finan­cial arrange­ments need to be sort­ed out as quick­ly as pos­si­ble so that the par­ties can con­tin­ue to meet their legal oblig­a­tions such as pay­ment of the home mort­gage and also pro­vide for the chil­dren ade­quate­ly. A good way to start is to pre­pare a check­list of reg­u­lar expens­es to dis­cuss with your Fam­i­ly Lawyer. 

How do I apply for spouse maintenance?

No one is auto­mat­i­cal­ly enti­tled to spouse main­te­nance. If the par­ties are not able to reach agree­ment then a par­ty can ask the Court to decide. Appli­ca­tions for spouse main­te­nance must always be sup­port­ed with evi­dence of the appli­can­t’s finan­cial posi­tion. Your Fam­i­ly Lawyer can advise whether an appli­ca­tion is appro­pri­ate in the cir­cum­stances, and what doc­u­men­tary evi­dence will be required.

Can I apply for urgent spouse maintenance?

Yes. You can ask your solic­i­tor to approach the Court for urgent assis­tance, bear­ing in mind that due to the cur­rent Court wait­ing times you must be able to demon­strate to the Court that there are sig­nif­i­cant rea­sons for urgency, such as the need for housing.

What about the chil­dren’s expenses?

Spouse main­te­nance can only be paid to an adult who has sep­a­rat­ed from their part­ner. This is dif­fer­ent to the mon­ey that is required to sup­port chil­dren of the rela­tion­ship, which is known as child sup­port. Chil­dren of the par­ties who are aged over 18 years and still finan­cial­ly depen­dent may be eli­gi­ble for adult child main­te­nance. Your solic­i­tor can advise you about finan­cial sup­port for the children.

What hap­pens if I am in the process of nego­ti­at­ing a prop­er­ty settlement?

If you are involved in dis­cus­sions with your for­mer part­ner for a Fam­i­ly Law prop­er­ty set­tle­ment it is very impor­tant that you seek legal advice. Your Fam­i­ly Lawyer can advise whether spouse main­te­nance should be addressed as part of your prop­er­ty set­tle­ment. This applies whether the set­tle­ment is achieved by nego­ti­at­ed agree­ment or through the Court. Be aware that legal time lim­its apply, and once Court Orders are made it may be too late to address the issue of spouse maintenance.

How do I know whether the Court will make an Order for spouse maintenance?

A Court will only make an Order for spouse main­te­nance if it is sat­is­fied that the appli­can­t’s need for finan­cial sup­port is rea­son­able and also that the respon­dent has the capac­i­ty to pay. 

What does the Court take into account?

The Court takes into account the appli­can­t’s income from all sources and their expens­es. The Court con­sid­ers the respon­den­t’s income and the finan­cial resources that may be avail­able to them. Depend­ing on the par­tic­u­lar facts and cir­cum­stances, the Court can order a respon­dent to make the pay­ment that is sought by the appli­cant, or it can order pay­ment of a dif­fer­ent amount, or it can refuse to order any pay­ment at all.

What if the respon­dent does­n’t have the capac­i­ty to pay?

The Court can require the respon­dent to answer detailed ques­tions about their sources of income and finan­cial resources. If a respon­dent does not have capac­i­ty to pay (for exam­ple, if they are no longer employed) then a par­ty in need of finan­cial sup­port should con­tact Cen­tre­link to see whether they may be eli­gi­ble for a Gov­ern­ment benefit. 

How long will I receive spouse main­te­nance for?

Gen­er­al­ly these days a spouse main­te­nance order is grant­ed for a lim­it­ed peri­od, such as until the youngest child starts school, or for a short peri­od while the appli­cant under­takes retrain­ing for employ­ment. Spouse main­te­nance stops if a recip­i­ent remar­ries and is also like­ly to cease or be reduced if the appli­cant com­mences a new de fac­to relationship.

In sum­ma­ry, every case is dif­fer­ent how­ev­er in order to man­age finan­cial oblig­a­tions after sep­a­ra­tion, and as time lim­its apply, the issue of spouse main­te­nance should be dis­cussed with your solic­i­tor in detail as ear­ly as possible.