Separated partners often face very different economic realities after a relationship ends, which is why spousal maintenance Australia can become an important consideration for some couples. Spousal maintenance is intended to help the less financially secure party to manage their needs after divorce. What that spousal maintenance entails depends on a number of factors and can be arranged in different ways.
Key takeaways
Understanding spousal maintenance Australia
Spousal maintenance is a form of financial support paid by one party to an ex-partner who has more vulnerable financial circumstances after separation. It’s covered under Section 72 of the Family Law Act. Spousal maintenance arrangements are available to married couples and people in a de facto relationship. Maintenance can be organised as periodic payments or a single lump sum payment.
As with other property matters, establishing financial obligations like spousal maintenance Australia has time limits measured from separation or divorce. If you’re looking for a maintenance order from a former spouse, you have one year from the granting of your divorce order to apply for it. If you’re looking for a de facto maintenance order, you have two years from the date you separated from your former de facto partner.
Eligibility to apply for spousal maintenance
Spousal maintenance orders aren’t automatically granted. There are two basic criteria that govern whether a person is eligible to receive spousal maintenance through a court order.
1. You can't adequately support yourself
You need to be able to show that you aren’t able to afford reasonable living expenses with your own financial resources. Circumstances that may contribute to this include:
You have primary care responsibilities for a child of the marriage.
Advanced age or health issues impact your earning capacity.
You have limited or non-existent income and assets to rely on.
You’re transitioning back into the workforce after an extended absence.
You had no financial independence during the relationship.
The key is to demonstrate that there’s a shortfall between your access to finances and your reasonable expenses.
2. Your former partner can afford to provide support
Your own needs are only half the story. Your ex-partner also needs to have the capacity to pay. Some of the issues the Federal Circuit and Family Court of Australia will look at include:
Their income.
Their property and financial resources.
Their ability to earn an income.
Their own financial needs and lifestyle.
If the other party’s capacity to pay is prevented by their circumstances, they may not be required to provide support.
How much is spousal maintenance?
If you’re required to pay spousal maintenance, how will it be calculated? Unlike child support, there’s no strict formula that gets applied to every case. The Court looks at your financial situation and the extent to which you’re able to be self-sufficient. If it’s found that you’re unable to do so without incurring significant hardship, the Court considers how much is required to cover your financial commitments. This may involve:
Your day-to-day living costs.
What is a reasonable standard of living?
The length of the marriage or de facto relationship.
Any changes in circumstances, such as a new de facto relationship.
Types of spousal maintenance agreements
There are multiple ways to arrange spousal maintenance.
Property settlement
Often, one spouse may be required to pay maintenance as part of a property settlement. This arrangement will be affected by the details of the settlement. The settlement could be made through a financial agreement or consent orders.
Spousal maintenance order
If you believe you’re owed financial support, but your former partner is refusing, you may begin financial proceedings in court. It can be useful to obtain legal advice before starting any litigation. The basic process is as follows:
Organise your financial information. Gather documentation about your financial situation. This could include:
Bank statements.
Credit card debts.
Home loan statements.
Daily expenses information.
Utility bills.
Recent pay slips.
Invite your spouse to mediation. Take every opportunity to explore the potential for agreement. Litigation can be a long and expensive process. If you can’t agree, you’ll get a genuine steps certificate to show that you’ve completed pre-action requirements.
Submit your application. You can apply for spousal maintenance using an initiating application.
Serve your spouse. You need to serve the application on your spouse so they have the chance to respond. Serve them the following documents:
The application.
Genuine steps certificate.
Copy of any family violence order affecting the parties.
Marriage, families and separation brochure.
Financial statement disclosing your finances.
Financial questionnaire outlining your contributions and future needs.
Undertaking as to disclosure testifying that you’ve fully disclosed your finances.
Attend the court hearing. The Court will consider the case based on the evidence that the parties provide. It may hear testimonies and review financial information.
Receive a decision. The Court will decide what payments are necessary based on the information provided and the payment frequency. The receiving spouse may apply for enforcement measures through the Court if the paying partner defaults on payments.
Urgent spousal maintenance
There may be circumstances when a party has an urgent need for financial support. The Court may order that maintenance be paid until a final order can be made. The Court can grant urgent spousal maintenance Australia if it sees the receiving spouse’s need for immediate assistance, but it’s not practicable to determine what orders should be made.
Informal agreement
Parties may decide to make an arrangement between themselves that doesn’t involve the Court or legal representation. This gives maximum flexibility for spouses to organise whatever arrangement they feel is appropriate. However, this approach has several risks:
Legal challenges. Informal agreements have no legal force. This means that any breaches cannot be addressed through the Court. You need to be confident that your former spouse will honour your agreement.
Undue influence. It’s possible that one party may be coerced into accepting terms that are very disadvantageous to them. Without professional help or court oversight, there may not be a good way for those parties to be protected.
Unconscionable terms. If you don’t work with someone who has expertise in property settlements, you may set terms in the agreement that heavily favour one party over the other. This may not be intentional. However, you end up with a division that doesn’t adequately meet your future needs.
From our clients
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Conclusion
There are times when spousal maintenance is needed to help a financially vulnerable party maintain a suitable standard of living after separation or divorce. Who pays and how much is owed depends on many factors. There are also a variety of ways to make the arrangements. Understanding how spousal maintenance is handled and how it’s calculated is important to protecting your financial future.
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