Spousal Maintenance

The "upkeep" of spousal maintenance

Divorce is a difficult time. Even when relationships end, many issues still require attention. One such issue is spousal maintenance, but what is it and how does it work?

What is spousal maintenance?

Under the Family Law Act 1975, if one spouse cannot financially support themselves from their own income and assets the other spouse has to financially support them.

How do I apply for spousal maintenance?

Spousal maintenance only applies to people who are or were married; de facto and same-sex partners are excluded. If you are married, you can apply for spousal maintenance any time before you are divorced.

If you are divorced, applications must be lodged within 12 months of the divorce becoming final. You may apply after this time, but only with permission from the court.

How is spousal maintenance decided?

Spousal maintenance can be negotiated during property settlement, but if there are disagreements a spouse can apply to the court. One spouse will only need to pay if they are reasonably able to do so, and if the other shows a real need. The court will balance the need of the one spouse with the ability of the other to pay, looking at both parties' reasonable needs (food, clothing, medical, house expenses etc) and actual income. If there is a difference between the two, a maintenance order will be made. The court takes into account:

• Age and health;
• Capacity to find employment;
• Property and financial resources;
• Care and control of children of the marriage.

How is spousal maintenance paid?

Payments can be made periodically, eg monthly, a lump sum or transfer of property.

How long does spousal maintenance last?

Generally, spousal maintenance ends when the spouse making payments passes away or when the spouse receiving payments remarries (except in special circumstances). The Family Law Act requires immediate notice of the remarriage to the payer. Payments made after remarriage can be recovered through the Family Court.

Do I need a lawyer?

To protect your rights, it is recommended that you obtain legal advice to be fully aware of your entitlements - any settlement will affect your (and any children) financial security. An experienced solicitor can advise on spousal maintenance orders and act in proceedings on your behalf.

To ensure your spousal maintenance issues are well looked after, call 03 7548 7874.