Spousal Maintenance – A Lifeline During Trying Times

Family Law: 06 August 2024

Author: Julia Popa - Our People

Following separation, meeting financial obligations can feel overwhelming and many people do not know of the options available to them.

If you are currently separated or considering separation and you are unsure how you are going to meet your day-to-day expenses, a potential option available to you may be to seek spousal maintenance from your ex-partner.

Though the term “spousal maintenance” may not be a familiar outside legal textbooks, you may recognise its American cousin, “alimony”. Any scandalous divorce depicted in American TV dramas will certainly involve one spouse demanding this financial arrangement from the other.

For the purposes of this article, we will remain consistent with the Australian terminology, being spousal maintenance. Regardless of the terminology used, the concept remains the same. Spousal maintenance refers to financial support provided by one spouse to the other following separation.

Am I eligible for spousal maintenance?

Under the Family Law Act 1975 (Cth), an individual has a responsibility to financially assist their former partner if the former partner is unable to meet their own reasonable expenses and they have the means to do so.

Importantly, the amount paid in spousal maintenance is not fixed, and the extent of the support is entirely dependent on the paying spouse’s financial capacity.

So, to put in other words, a spouse is entitled to receive spousal maintenance only to the extent that the ex-spouse is financially capable of supporting them.

There are a multitude of reasons as to why a spouse might not be capable of financially supporting themselves following separation. In traditional relationships where one spouse is the breadwinner and the other stays at home to care for the family, the day-to-day expenses of the stay-at-home spouse are often covered by the breadwinner’s earnings.

Of course, the stay-at-home spouse’s role is significant as it enables the breadwinning spouse to focus on their career and generate an income for the family. Such a role is certainly recognised by the Court. Notwithstanding this, when the relationship ends, the financial dependence of the stay-at-home spouse becomes apparent.

Despite their significant contribution to the family dynamic, the stay-at-home spouse may find themselves without the financial means to support themselves. This is where spousal maintenance comes into play.

Whilst this is a common scenario that we encounter in our day-to-day work, this is but one example of why a spouse might struggle to financially support themselves following separation. Every situation is unique, and we would be happy to discuss if spousal maintenance is an avenue available to you in your specific circumstances.

What will the Court consider when determining my eligibility for spousal maintenance?

Ultimately, the Court weighs up two important factors:

1. The needs of the spouse seeking spousal maintenance; and

1. The capacity of the other spouse to meet payment obligations.

Both factors must align to compel the Court to order spousal maintenance. In this regard, if your circumstances are such that you are a candidate for spousal maintenance, the Court will only make an order for spousal maintenance if the other spouse has the financial means to pay.

In reaching a determination, the Court will consider each spouse’s respective circumstances, including:

1. Age;

1. Health, including any illnesses or disabilities;

1. Income and assets;

1. Financial resources;

1. Capacity to work;

1. Standard of living; and

1. Any impact the relationship has had on earning potential.

The Court will also consider the care arrangements of any children. If one spouse remains the primary carer of the child/ren following separation, this may favour their eligibility for spousal maintenance.

Do I have a time limit?

Unfortunately, spousal maintenance is not an indefinite option. You may only make an application for spousal maintenance:

1. Within one year from the date of your final divorce order; or

1. Within two years from the date in which your de facto relationship ended.

If you find yourself nearing the end of the above time limits, contact our office as soon as possible.

Can I receive spousal maintenance forever?

The Court is under a strict obligation to completely sever the financial ties between you and your ex-spouse.

In these circumstances, the Court will not order your ex-spouse to pay you spousal maintenance indefinitely as this would result in a perpetual attachment to them, which would prevent you from moving on with your life.

Ultimately, the duration in which an individual is entitled to receive spousal maintenance is entirely at the discretion of the Court. Commonly, it is paid until the family law matter is finalised, following which you can rely on your property settlement until you find your feet.

At a maximum, your ex-spouse’s obligation to continue to pay you spousal maintenance should last no longer than three years following the conclusion of your family law matter.

Notwithstanding the above, your right to continue to receive spousal maintenance will end prematurely if:

1. You remarry;

1. You enter a new de facto relationship;

1. Your former spouse dies;

1. Your responsibility in relation to care of any children changes; or

1. Your earning capacity increases.

Next Steps

Spousal maintenance applications are inherently complex. If you would like some advice or assistance in making an application for spousal maintenance, please call our office on 03 8600 6000 and speak with one of our highly qualified and experienced family lawyers.