Spousal Maintenance: What It Is and When You Might Be Entitled/When might you have to pay it?
When a relationship ends, it’s not always possible for both parties to support themselves right away. One person might have taken a step back from their career to care for children, or may be unable to work due to illness or age. In these cases, spousal maintenance can provide financial support after separation or divorce.
Spousal maintenance is a key part of Australia’s family law system, but many people overlook it during property settlement discussions. If you’re separating or already divorced, it’s essential to understand your rights and obligations.
What is Spousal Maintenance?
Spousal maintenance is a financial payment made by one former spouse or de facto partner to the other, to assist with living expenses when that person cannot adequately support themselves.
The Family Law Act 1975 says that a person has a duty to financially assist their former partner if:
- That partner is unable to support themselves adequately, and
- The other party has the capacity to pay.
This is not automatic – the court looks at the circumstances of each party before making any decision.
Who Can Apply for Spousal Maintenance?
You can apply for spousal maintenance if you are:
- Separated or divorced from a spouse, or
- Separated from a de facto partner, provided you meet the legal criteria for a de facto relationship.
To qualify, you must show that:
- You can’t support yourself adequately because of factors like caring for children, health issues, age, or lack of income or employment;
- The other party can afford to pay you without causing themselves undue financial hardship.
Types of Spousal Maintenance
There are a few different ways spousal maintenance can be paid:
1. Periodic Payments
These are regular payments – such as weekly or monthly – for a set period of time. This is the most common form.
2. Lump Sum Payments
Instead of ongoing payments, some parties agree to (or are ordered to) pay a single amount upfront as part of a financial settlement.
3. Payment of Specific Expenses
A party may cover specific costs like rent, car payments, health insurance or school fees rather than paying cash directly.
How Long Does It Last?
Spousal maintenance isn’t usually indefinite. It may be ordered or agreed for a fixed period – for example, until the receiving party retrains, returns to work, or children reach school age.
Payments may stop if:
- The recipient remarries;
- Either party’s financial situation changes significantly;
- The maintenance term expires (by agreement or court order).
The court can also vary or discharge a maintenance order if circumstances change.
How to Apply for Spousal Maintenance
You can apply:
- By agreement – parties can include spousal maintenance terms in a Binding Financial Agreement or Consent Orders lodged with the Family Court.
- Through the court – if you can’t agree, you can apply to the Federal Circuit and Family Court of Australia for an order.
Important: You must apply for spousal maintenance within 12 months of your divorce becoming final. If you’re in a de facto relationship, you must apply within two years of separation unless the court gives you permission.
Factors the Court Considers
The court assesses both parties’ financial positions. It looks at:
- Age and health
- Income, property, and financial resources
- Capacity to work
- The need to care for children
- The standard of living during the relationship
- Contributions made to the relationship (financial and non-financial)
The court aims to strike a fair balance – no party should suffer unnecessary hardship if the other can help.
Why You Should Consider Spousal Maintenance Early
It’s important to deal with spousal maintenance at the same time as your property settlement. If it’s not included in your agreement, a claim can be made later – which could disrupt your financial plans.
A well-drafted settlement can:
- Finalise all claims
- Avoid future disputes
- Provide certainty for both parties
You can also include a mutual release clause in a Binding Financial Agreement that waives each party’s right to spousal maintenance, if both parties are financially secure.
Get Legal Advice Early
Spousal maintenance is a complex area of law. Whether you’re seeking support or being asked to pay it, you need clear legal advice to protect your financial interests and ensure any agreement is legally enforceable.
Talk to an Experienced Family Lawyer
At Swanwick Murray Roche, we guide clients through the legal and practical issues of separation every day. Our experienced family law team will help you understand:
- Whether you’re entitled to receive or may need to pay spousal maintenance
- How to include maintenance in your property settlement
- Your best options for reaching a fair and binding outcome
Don’t leave it too late – contact us today for a confidential, no obligation appointment.
Let’s help you secure your financial future with clarity and confidence.
Disclaimer
This article provides general information only and does not constitute legal advice. For specific advice tailored to your circumstances, please contact one of our experienced family lawyers.
