Spousal Support And Maintenance

Spousal support or spousal maintenance (these terms are often used interchangeably), is an ongoing payment after divorce, or on the breakdown of a marriage, where one of the spouses is unable to continue to support themselves.

Spousal maintenance is determined separately from divorce proceedings, and may be applied for before or after divorce (though usually within 12 months of divorce).

‘Alimony’ is a legal term, common in the United States, to refer to ongoing payments after the end of a marriage. It is determined on a state-by-state basis and is quite different from the Australian concept of spousal maintenance payments.

Yes, a similar form of financial support can be awarded on the breakdown of a de facto relationship.

Three kinds of application can be made for spousal maintenance in Australia.

• Urgent Maintenance. This may be applied for where one partner needs support immediately;
• Interim order for maintenance. This is an order which will apply temporarily until a full and final decision can be made by the court.
• Final order for maintenance. This involves an order for ongoing financial support based on the anticipated ongoing need of an individual.

Spousal maintenance payments (or de facto maintenance payments, in the case of de facto partners), are not automatically given to one party. In the interests of achieving a ‘clean break’ for both parties it is only ordered for a fixed period of time.

The court will consider a range of factors before granting an order for maintenance, once eligibility for maintenance is confirmed. These factors include, but are not limited to:

• Age and health;
• Financial resources of both parties, both currently and looking into the future;
• The ability of both parties to work;
• A suitable standard of living;
• How the marriage impacted on the ability of one of the spouses to earn an income;
• The existence of children under 18 or disabled adult children who need support.

A similar range of factors are considered in the case of de facto maintenance payments under section 90SF of the Family Law Act 1975.

An application to the court must be made within 12 months of a divorce being finalised for spousal maintenance. For de facto relationships, the application must be made within 2 years of the breakdown of the relationship. Applications can be made to the court outside of these time limits in exceptional circumstances.

Orders for maintenance can be urgent, interim and final in nature, depending on the needs of the applicant.

As an alternative to applying to the court, both partners could come to an agreement about maintenance between them.

For more information see How do I apply for property and financial orders?

The basic requirements for eligibility for spousal maintenance are set out in section 72 of the Family Law Act 1975. A party is eligible to apply where they are unable to support themselves adequately due to:

• Needing to take care of a child of the marriage;
• Age or incapacity (whether physical or mental), or
• For any other adequate reason.

You need to seek independent legal advice on your eligibility. Lawyers will be able to give advice on the likelihood of your claim succeeding in court based on their knowledge of how the courts have interpreted similar cases. They may also be able to help you reach an agreement on maintenance without the need for a court order.

Note, eligibility to apply for spousal maintenance does not guarantee that any particular level of payment will be made.

There is no exact formula used to calculate spousal maintenance. The court will make its decision based on the income and assets of the parties and reasonable expenses.

Your lawyer can help you with the information you need to provide, such as income information and a proposed budget, to support your case in court.

If you are unable to agree with your former partner on an amount for ongoing maintenance, and you are within established time limits, you may make an application to the Family Court.

For more information see How do I apply for property and financial orders?

Spousal support is an ongoing payment to a former spouse to recognise their need for support, while child support is an ongoing payment based on the needs of the child.

Yes, the court will take into account any present or future liability for child support payments when calculating spousal maintenance payments.

It is recommended. Only a family lawyer has up-to-date information on the amounts that people in your situation have been required to pay.

No. You should first try and come to an agreement with your former spouse or partner. If you are unable to do so, only then should you apply to the court.

An application for maintenance must be made within 12 months of the finalisation of a divorce, and within 2 years of the breakdown of a de facto relationship.

The court will consider a range of factors before granting an order for maintenance including, but not limited to:

• Age and health;
• Financial resources of both parties, both currently and looking into the future;
• The ability of both parties to work;
• A suitable standard of living;
• How the marriage impacted on the ability of one of the spouses to earn an income;
• The existence of children under 18 or disabled adult children who need support.

This is for the court to determine, but they will only apply for a finite period of time – a maintenance order does not apply for life.

There are certain circumstances that will automatically end the maintenance order, including the death or re-marriage of one of the parties (with some exceptions in the latter case).

The court has the power to discharge, suspend or vary the maintenance order where circumstances have changed.

If one party wishes to apply to the court, and they meet the legal requirements for spousal maintenance, it will be payable. There is no ‘getting out of it’.

However, if you can come to an agreement with your former spouse or de facto partner on maintenance payments, ideally at the time of property separation, this is preferable.