Spousal Maintenance for Couples

If you are unable to financially support yourself adequately after separation, you may be entitled to receive spousal maintenance (a weekly or monthly payment) from your former spouse or partner. 

Spousal maintenance is available to both married and de facto couples; the law does not differentiate between the two.

Spousal maintenance is calculated based on the reasonable needs of the person making the application, and the financial capacity of the former spouse or partner who is being asked to meet that need. In assessing the reasonable needs and capacity, the court ignores any social security allowance or pension that is being paid to the person applying for spousal maintenance.

The person making an application must prove that he or she has a need for spousal maintenance by establishing one or more of the following grounds:

• They have the care and control of a child of the marriage or de facto relationship who is under 18 years of age;

• Their age or physical or mental incapacity impedes their capacity to work; or

• Any other adequate reason.

Normally, spousal maintenance claims are dealt with at the time of a final property settlement. However, many people require urgent spousal maintenance after separation when they no longer have access to the same level of financial support that they did during the marriage or de facto relationship.

Spousal maintenance orders are usually made for a limited period or on an interim basis pending the finalisation of a property settlement. There are many factors that the Court can into account when considering the length by which a spousal maintenance order will be made. Some orders are for 6-12 months after separation (to enable the recipient to re-train or return to gainful employment), whereas some orders can be for several years. It all depends upon the facts and circumstances of each case. 

Generally, the Family Court expects both parties to make reasonable efforts to secure paid employment if they can. However, the Family Court also accepts the need for a party to care for children beyond separation, especially when the children are of an age where they need greater parental supervision. 

It is important to note that spousal maintenance is separate to and distinct from child support under the Child Support Assessment Act 1989 (Cth). Spousal maintenance is concerned with the financial maintenance of the spouse / partner, whereas child support is concerned with adequate financial support for the benefit of a child / children.

Every situation is unique, and time limits for making a spousal maintenance claim do apply. Pearson Emerson Family Lawyers are highly experienced in acting for parties who either seek to be paid spousal maintenance, or seek to defend a claim for spousal maintenance. Early and specific advice is essential. Please contact PE Family Law to obtain specific advice regarding your spousal maintenance application or a claim being made against you.