Spousal Maintenance Australia
In the event of a relationship breakdown, it may sometimes happen that one person will require financial support from the other person to help with living expenses. This is referred to as spousal maintenance or spousal support.
In Australia, partners in de facto and same-sex relationships have the same rights and obligations for spousal maintenance as married couples. Our team of spousal maintenance lawyers in Brisbane can help you navigate spousal support in the event of a separation or divorce.
What is Spousal Maintenance?
Spousal maintenance is a type of financial support that is paid by one spouse to another following the end of a marriage or de facto relationship. The purpose of spousal maintenance is to help the receiving spouse meet their needs and maintain their standard of living, whether that be temporarily or permanently.
In order to be eligible for spousal maintenance, the receiving spouse must demonstrate that they are unable to adequately support themselves, either because they are caring for young children or because they do not have the necessary skills or experience to find employment. The amount of spousal maintenance that is paid will depend on a number of factors, including the receiving spouse's income, assets, and earning capacity. In some cases, spousal maintenance may be ordered on a temporary basis, while in others it may be ordered on a permanent basis. We have more info on this below.
Spousal maintenance is separate to child support, and can be an ongoing periodic payment or lump sum payment. There may be cases as well, where spousal maintenance is required to meet on-going financial obligations pending a final financial settlement, such as paying mortgage payments on a house even though you no longer live there.
Common Assumptions
It’s a common misconception that people are no longer financially liable for their former partners once they separate or divorce, but that is not the case. On the other hand, some may assume that spousal maintenance is automatically awarded to former partners who require it.
Unfortunately, neither assumption is correct, and each relationship comes with its own set of circumstances that will impact whether or not someone is entitled to spousal maintenance. You may be required to continue financially supporting a former partner, or be entitled to receive spousal maintenance from a former partner - it will depend on your specific circumstances.
Applying for Spousal Maintenance
An experienced family lawyer can help ascertain where you or your partner have the grounds to claim for spousal maintenance. More importantly, a lawyer can help you understand the process better, and make sure your legal rights are being met.
The Court has specific criteria to determine whether or not spousal maintenance is rewarded. Not only will they have to decide if spousal maintenance is needed, they will also consider if the other party has the capacity to pay it. The Court will also take into consideration:
the ages of both you and your former partner;
the mental and physical health of both you and your former partner;
the capacity for each partner to find employment after separation;
the duration of the relationship;
ensuring that both you and your former partner have a reasonable standard of living;
whether or not any pensions or government benefits are being claimed;
whether either party has since begun another live-in relationship with another party;
which parent is caring for the children of the marriage;
whether either partner has a responsibility to support another person.
The process of approval will include a detailed examination of the income and expenses of both partners.
Each case is unique, and therefore the outcome will vary from case to case. An experienced family lawyer will be able to assess whether spousal maintenance is payable, and how much the amount may be.
There are many situations where spousal maintenance has been granted by the Court. If you are in a similar situation to below, we highly recommend that you seek legal advice on spousal support right away:
You have care of your young children and are unable to leave the home and apply for employment
You are have not been employed for a long period of time and do not have up-to-date skills to apply for employment
You are unable to work due to age or illness
It should be noted that spousal maintenance is not automatically granted due to someone being unable to earn an income. If there’s any reason for the Court to determine that you are able to work but are choosing not to, your application may be refused.
Do I have to go to court?
No, you are not required to go to court for spousal maintenance in Australia. You can negotiate maintenance directly with your spouse or through a lawyer. However, if you and your spouse cannot agree on maintenance, either of you can apply to the court for an order. The court will consider a number of factors when making a decision on maintenance, including the financial needs and resources of each party, the capacity of each party to earn an income, the length of the marriage, and whether there are any dependent children and other factors we mentioned above. If you are considering applying for spousal maintenance, it is important to seek legal advice to ensure that you meet the eligibility criteria and understand the process.
Get A Lawyer On Your Side
At Franklin Family Law, we offer a consultation call where you can find out more about how our team of Brisbane family lawyers can help you navigate the legalities around spousal support.
Our initial consultation is charged at a flat rate of $330.00 (including GST). This is the best option if you’d like a more detailed insight into your case and a strategy that can benefit you the most.
For this fixed fee, you’ll have access to a spousal maintenance lawyer in Brisbane who will offer up-to-date legal advice and guidance, so you have a more accurate view of what your case will entail.
Frequently Asked Questions
To allow for more time to deal with your specific circumstances during our initial consultations, we’ve prepared this handy FAQ that covers some general topics to help you understand spousal maintenance a little better before meeting with our lawyers.
Is there a time limit for applications for spousal maintenance?
If you were married, you have a time limit of 12 months after your divorce becomes final to apply for spousal maintenance.
If you were in a de facto relationship, you have a time limit of 2 years after the breakdown of your relationship to apply for spousal maintenance.
In some cases, the Court may grant you an extension to these time limits, but these instances are extremely rare. We recommend that you apply for spousal maintenance as soon as possible after your relationship ends.
Can spousal maintenance be backdated?
Generally, the Court will not backdate a spousal maintenance order to start on an earlier date. Spousal maintenance can only commence on the day that an order is made.
I had a short marriage. Am I still eligible for spousal maintenance?
It really depends. Since every case is decided on its own merits, you may or may not spousal maintenance depending on other circumstances in your case such as caring for young children, or being unable to earn an income. The length of your marriage should have no impact on a Court’s decision either way.
I am legally bankrupt. How does this impact the spousal maintenance I have to give?
Your former partner can still make an application for spousal maintenance regardless of your bankruptcy.
If your former partner is successful in their application, the order for spousal maintenance will be taken to your debts. They can then choose to enforce those debts through the Court if you do not pay. The funds may also be taken through deduction of your wages or by intercepting your tax refunds.
Does spousal maintenance affect Centrelink benefits?
If you do receive spousal maintenance, you will be required to notify Centrelink, who will then reassess your entitlement to receive benefits. How this affects your payments will depend on what type of benefits you are currently receiving from Centrelink. If you are concerned about this, it’s best that you speak to a family lawyer to have a clearer understanding of your entitlements.