Spousal Maintenance: Financial Support From Your Former Spouse
Are you finding your separation to be financially tough? If you have just come out of a long-term relationship, there can be a lot to take in and it can be hard to sustain yourself. It is often a steep learning curve, one you have never gone through before.
If you have young children, you wonder how you are going to take care of them and try and earn an income at the same time.
This is where Spousal Maintenance can help. Spousal Support can help you get financial support from your former spouse, even after the relationships has ended. It can be the difference between you struggling, or you having the finances as you take the steps to ensure you can support yourself.
Need A Family Lawyer To Help You Get Support?
Your Guide To Spousal Maintenance
Table of contents
What Is Spousal Maintenance?
Spousal Maintenance is the financial support one spouse provides for the other after the relationship has ended.
Under the Family Law Act 1975, if a former spouse or de facto partner cannot support themselves from their own income or assets then their former partner has a responsibility to financially assist them.
Spouse Maintenance is different to child support.
Both you and your former partner have an equal duty to support and maintain one another as much as you can. This duty can continue even after the both of your have separated and divorced. The amount of support paid depends on what each of you can afford.
There are two types of spousal maintenance applications that the Court deals with. These are:
- Spouse Maintenance: Financial support provided by a spouse to their former wife or husband where the other cannot sufficiently provide for themselves.
- De Facto Partner Maintenance: Financial support provided by a partner to their former de facto partner where the other cannot sufficiently support themselves after the relationship has ended.
Spousal Maintenance is different to Child Support and Adult Child Maintenance and might be payable in addition.
No matter whether you are receiving or providing spouse or child support, you should always seek legal advice. This will help you understand what you are entitled to, and any obligations you must fulfil.
When Is Spousal Maintenance Payable?
The payment of Spousal Support is not something that occurs automatically when a relationship breaks down. If you are wishing to receive suppporting payments from your former partner you will need to apply.
When the Court is making a decision around a Spousal Maintenance application, it will look at the needs of an applicant as well as the capacity of their former spouse to pay.
To be eligible for payments the person applying must show that they have a need for the support that they cannot meet themselves.
The main reasons someone may apply for Spousal Maintenance include:
- You have been in the relationship for a long time and do not have the necessary current skills enabling you to re-enter the workforce
- You are unable to work due to ill health, health issues or you a suffering a mental or physical disability.
- You are caring for a child of the relationship who is not year 18 years of age.
- You have another reason that is relevant to matters referred in subsection 75 (2) of the Family Law Act 1975,
If the applying spouse is shown to be either unable to earn any income or is earning a limited income, then spouse support may be payable, if their former partner has the ability to pay.
How Is Spouse Maintenance Determined?
There are three main factors that go into determining how much support payments one party will receive from another.
1. Finances Of The Applicant
Firstly, the Family Court will look at the finances of the partner seeking Spousal Maintenance. If you applying for Spousal Support, you should prepare a detailed budget that takes in all of your income and expenses.
The Court will review your income, any expenses you have, your assets and liabilities.
The Court will ignore any payments you are receiving from Centrelink, however, if you do start to receive support, then Centrelink may reduce your existing payments.
Have you have entered a new defacto relationship? As an applicant spouse, the Court will assess the financial agreement between you and your former partner, and the new financial situation of your new relationship.
2. Income Earning Capacity Of The Applicant
The Court will assess whether the person making the application to receive Spousal Maintenance has an ‘ability to earn’ which they are not applying.
There have been cases where an applicant has been shown to have the ability to support themselves, however, they have chosen not to do so.
In those cases, the application is usually dismissed, with the Court telling the applicant they have the capacity to earn an income to support themselves.
3. Finances Of Respondent (Paying) Spouse
After the court has assessed the finances of the person applying and decided they are eligible for Spousal Maintenance, the Court will then asset the Respondent Spouse.
The Court will look at the capacity and ability of the Respondent Spouse (the partner asked to pay support) to pay the Spousal Support. This involves assessing their financial circumstances.
The Respondent Spouse is responsible by law to maintain their former spouse, to the point that they are able to afford to do so if their former spouse is unable to support themselves adequately.
Finding The Balance
Once all of these factors have been taken into consideration, the Court will balance the need of one person against the ability to pay by their former partner.
When determining whether spouse contributions should be paid, the court will consider a number of factors for both parties.
A court will make the financial order base on what is fair to both people.
You may have a desperate need for Spousal Support, but if your former partner does not have the income or ability to do so, then the Court will not order anything to be paid to you.
If the Applicant is deemed eligible for maintenance and the Respondent Spouse can afford to do so, then an appropriate Spousal Support amount will be made.
Paying the Spousal Support
If an Order for Spousal Maintenance has been made by the Court, it is important to specify how, when and where the payments should be made.
Payments to a former partner can either be payable regularly over a certain period of time (e.g. Weekly for 6 months, a year, 3 years etc) or it can be paid as a lump sum amount. Sometimes these lump sum payments can be in the form of assets that the Respondent owns.
Sometimes, within the property settlement, a set amount of finances received by one partner may be declared to be a one-off payment of Spousal Maintenance.
If you are the paying party, it is important to keep all records of payment. This is to ensure that you have document evidence of payment if a dispute were to arise.
A great idea is to set up an automatic transfer from bank account to bank account. This will automatically create a reliable record that can be easily accessible if proof of payment is needed.
When Can I Apply For Spousal Maintenance?
You can apply for Spousal Maintenance any time after you have separated, even if you and your former partner are under the same room.
However, if you were married, you must make an application for Spousal Maintenance within 12 months from when your divorce was finalised.
Coming out of a de facto relationship? You must make your application for De Facto Partner Maintenance within 2 years from when your de facto relationship broke down.
If you do not make your application within these times, you’ll need to seek special permission from the Court which is only given in exceptional circumstances
What If There Is A Change In Financial Circumstances?
Has your and your former partner’s financial circumstances changed ?If a Court has ordered periodical allowance payments, either you or your former partner can apply to change or dismiss the Order.
Has your financial position has gotten worse while you are receiving payments from your former partner? You can apply to the Court for an increase in the amount of payments.
Similarly, are you receiving Spouse Support, and have started work or find yourself in a better financial position? If so, your former partner paying the support can make an application to the court to have the amount of your payments be reduced or for the Order discharged entirely.
What If My Former Partner Fails To Pay Maintenance?
Spousal Maintenance, ordered by the Court, is enforceable.
If your former partner fails to make payments the Court has order, then you are able to require the Order be enforced by the Court.
If your former partner still fails to pay support, the Court may seize any assets they may own.
If you do go back to the Court to get the Spousal Maintenance Order enforced, then the Court may also request your former spouse pay interest on the what was owed and/or the payment of part of the legal fees.
When Do Reoccurring Spouse Maintenance Payments End?
In many cases, the Courts will only order former spouse payments to be paid off over a fixed period of time such as 6 months, 1 year or 3 years.
During this time, the person receiving periodic Spousal Maintenance should have taken steps to ensure that they can now support themselves.
How long Spouse Support will be supplied for will determined by a number of factors including:
- You and your partner’s age and how close you are to retirement.
- Whether there is children involved and the level of supervision and care they require.
- Whether a party cannot gain employment due to disability or illness.
Unless a Court orders otherwise, Spouse Maintenance will end if either party dies or if the partner receiving the maintenance remarries.
Other factors that can also result in payments ending include:
- The recipient’s financial circumstances improve due to a new defacto-relationship.
- Changes to child care responsibilities.
- Improvement of earning capacity.
Once a Spouse Maintenance Order is in place, both you and your former partner will have to abide by the terms of the Order.
In order to end support payments, it is necessary to apply to the court to change the terms of the order.
What Details Will The Court Consider When Determining Support Payments?
When determining whether Spousal Maintenance should be paid, the court will consider the following factors detailed in Section 75 (2) of the Family Law Act 1975. The following factors will be considered and taken into account for both parties:
Income, property, financial resources and debts.
Age and health of each spouse
Mental and physical capacity for gaining appropriate employment
Whether any children are cared for and live with you or your former partner.
Any responsibility of each spouse has to support any other person.
Whether either spouse is eligible for a pension.
What is a suitable standard of living.
Paid or potentially future child support payments.
The affect any proposed court order would have on the ability to pay creditors.
The duration of the marriage and if the marriage has affected a partner’s ability to earn an income.
If a spouse wishes to continue their role as a parent.
If either spouse is cohabitation with another person and the related financial circumstances .
Would payments help the other party increase their earning ability by helping them undertake further education or training, set themselves up in a business, or other adequate income.
How much the spouse applying for maintenance has contributed to the income, earning capacity, assets and finances of the other person.
Commitments that are necessary to support themselves or another person they have a duty to maintain.
Any facts or circumstances which the Court will need to be taken into account.
The details of any binding financial agreements.
Frequently Asked Questions
What if I’m still living with my partner but they won't provide support?
Are you married or in a relationship and living with your partner? You may be able to get support maintenance to cover your own living expenses. The application process is that same as if you were separated.
Can I get spousal maintenance if I am pregnant?
Not married and expecting a child? You might be able to claim childbirth maintenance from the baby’s father. A partner can ask for contributions to cover the 2 months before and 3 months after the child is born. You may also be covered for reasonable medical expenses related to the childbirth and pregnancy.
You must apply to the Local Court or the Family Law Courts during the time of pregnancy or within 12 months after giving birth. The Court will then consider the financial position of each parent and any special circumstances.
Do I still receive spouse support if I start a new relationship?
If you marry another person, you will not be entitled to spouse maintenance unless the Court orders otherwise. If you start a new de facto relationship the court will take into consideration the financial situation of the new relationship when considering whether you are able to adequately support yourself