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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.