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Spousal maintenance in Australia
Spousal maintenance Australia wide is financial support that one party to a marriage or de facto relationship must pay to the other when the receiving party is unable to financially support themselves.
Most people are familiar with child support or the right to apply for a property settlement but many do not realise that they may be entitled to spousal maintenance when their relationship breaks down. It is therefore critical to obtain timely legal advice from an experienced family law solicitors who can determine if you are entitled to spousal maintenance.
Lawpoint can help guide you through the process and negotiate spousal maintenance on your behalf, helping you secure the best possible outcome. Learn about Lawpoint’s team, read our plethora of positive client reviews and contact Lawpoint today for advice.
Am I entitled to spousal maintenance in Australia?
Spousal maintenance is not an automatic right. A party must apply to the Court to obtain an order for spousal maintenance.
Section 72 of the Family Law Act 1975 provides that one party to a marriage is liable to support the other party where that party is unable to adequately support themself:
- by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
- by reason of age or physical or mental incapacity for appropriate gainful employment; or
- for any other adequate reason.
The Court considers a number of factors in determining this question, including your age and health, your income, assets and any other financial resources available to you, what is a suitable standard of living and whether or not the marriage has affected your earning capacity.
Even if you can establish that you are unable to adequately support yourself, the court must still be satisfied that your former spouse has sufficient capacity to pay you spousal.
It is important to remember that any entitlement to spousal maintenance ceases if the person receiving spousal maintenance remarries, unless there is a Court order to the contrary. If a person starts a new de-facto relationship, although the spousal maintenance does not cease automatically, the Court will have regard to the financial relationship between the new de-facto parties in considering whether you can adequately support yourself without spousal maintenance.
When should I apply for spousal maintenance?
If you are unable to adequately support yourself, you should apply for spousal maintenance as soon as the relationship ends. There is no requirement that the parties are divorced, nor is there any requirement for the parties to have finalised property settlement or orders.
It is very important to note though that if you are divorced, there is a strict time limit of 12 months from the divorce order taking effect in which to apply for a spousal maintenance order. Any application outside that time period will require special leave of the Court.
For de facto relationships, an application for spousal maintenance must be made within 2 years of the end of the relationship.
The Family Law Act 1975 has provisions allowing a person to make an urgent spousal maintenance application in certain circumstances.
Spousal maintenance orders are discretionary
Just because you may know someone who succeeded in obtaining a spousal maintenance order, does not mean that you are entitled to spousal maintenance.
As with much of the Family Law Act 1975, the decision whether or not to make a spousal maintenance order is discretionary. That means that the Court will look at each set of facts on a case by case basis after a thorough assessment of the facts. The Court must be satisfied that it is reasonable in all the circumstances for a spousal maintenance order to be made.
Related to this concept of reasonableness is the principle that the Court will not automatically order a party to pay spousal maintenance to maintain a standard of living enjoyed prior to separation. For example, just because someone was accustomed to buying two pairs of shoes per week before separation, does not mean that the Court will find that their former spouse should maintain them so that they can continue to do so after separation.
Similarly, a party who does not take reasonable steps to earn an income or who actively avoids working but claims that they cannot adequately support themselves is highly unlikely to obtain an order for spousal maintenance.
How is spousal maintenance paid?
Usually, spousal maintenance is paid on a periodic basis and can take the form of cash payments or payment of expenses on behalf of the person in whose favour a spousal maintenance order is made, such as mortgage payments and other household expenses.
Usually, if property proceedings are also on foot, the claim for spousal maintenance will be delayed until the determination of the property orders, unless there is an urgent need for an order to be made prior.
The Court may also order a lump sum spousal maintenance order as part of property settlement orders.
Do you have to go to Court for spousal maintenance?
We always recommend that you try and reach an out of court agreement with your former spouse before commencing court proceedings. It is significantly cheaper and less stressful to try and reach a settlement where that is possible.
If agreement can be reached, the agreement can be reflected in different ways, including by factoring in any entitlement to spousal maintenance in property settlement or by including a spousal maintenance requirement in a Binding Financial Agreement which each party signs.
If you need advice about any aspect of the breakdown of your marriage or de facto relationship, including spousal maintenance, speak to one of our highly experienced family law solicitors. Get the advice you need to understand your rights and steps involved and let Lawpoint represent you to ensure you receive the best possible outcome.
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