What is spousal maintenance? When can spousal maintenance be ordered?

by | Apr 22, 2024 | Family Law, Spousal Maintenance

Understanding the Legal Framework and Application Process: Spousal Maintenance Guide

When is spousal maintenance payable?

Maintenance is payable by one spouse to another only if the spouse asking for maintenance is unable to support themselves “adequately” and the other spouse has the means to pay maintenance once their own reasonable living expenses have been met.

When assessing the capacity of a person to support themselves adequately, the Court will look at factors including whether the party has the care of children, or if the work available is not “appropriate” because of factors such as their age or mental and physical capacity for work or other “adequate” reason. (“Appropriate” and “adequate” are both words used in the Family Law Act 1975 (Cth) (“FLA”). This is discussed further below.

When assessing the level of maintenance to be paid and the parties’ reasonable needs, the Court will look at the standard of living enjoyed by the parties prior to separation and enjoyed by the other spouse post-separation. There is no objective test and what is “adequate” and “appropriate” will depend on the facts of each case.

The factors that the Court needs to consider

There are some circumstances where it is appropriate to provide for a liable party to maintain the other party pursuant to sections 72 (married parties) and 90SF (de facto parties) of the FLA when that party is unable to otherwise support themselves. These circumstances include:

  • the other party has the care and control of a child under the age of 18 years of the marriage or relationship;
  • the other party is unable to obtain gainful employment due to a physical or mental incapacity; or
  • any other adequate reason.

The Court will consider the following factors under sections 75(2) (married parties) or 90SF(3) (de facto parties) of the FLA:

  • age and health of each party;
  • income, property and financial resources of each party;
  • duration of the marriage and direct or indirect contribution by a party to the other’s income, property and financial resources;
  • any child under the age of 18 years who is in the care of one of the parties;
  • necessary commitments of each party to support themselves, another person or a child;
  • eligibility of each person for a pension or superannuation entitlement;
  • whether the parties can maintain a reasonable standard of living given all the circumstances of the matter;
  • whether the maintenance will allow a party to undertake a course of education which will increase that party’s earning capacity;
  • third party creditor’s interests;
  • financial position of another person with whom a party is cohabiting;
  • the terms of any property adjustment order or declaration, any child support assessment or financial agreement relevant to the parties; and
  • any other relevant fact or circumstance.

Other matters the Court considers

The Court must also balance a person’s need for maintenance against the capacity of the person who is required to pay maintenance. A person requiring maintenance may have a perfectly understandable need, but the other party may not be in a position to pay any or only a small amount of the need and thus no order will be made.

When can the Court make spousal maintenance orders?

There are three stages at which the Court looks at maintenance:

  1. Where circumstances are urgent

That is, if a person has an immediate need for maintenance, e.g. to put food on the table and meet essential accommodation costs. A Court will make such an order on a very brief enquiry, but these orders are always short term to tide over the party in need.

  1. On an interim basis. This is called interim maintenance

Usually, the Court takes into account the written evidence of both sides and makes the best order it thinks appropriate in the circumstances. If the maintenance on a closer examination (at the final hearing) turns out to have been overly generous the Court takes that into account when adjusting property.

  1. At the final hearing

On a final hearing a Court hears evidence that can be tested by cross-examination and the Court can give far closer scrutiny to a person’s need for maintenance and the other person’s capacity to pay.

The Court can discharge, suspend, vary or revive spousal maintenance orders pursuant to sections 83(1) (married parties) and 90SI(1) (de facto parties) of the FLA. For example, variation of a previous order may be warranted due to change in care of a child or financial circumstances.

Applying for spousal maintenance

If you wish to apply for spousal maintenance, you will need to prepare an “Initiating application (Family Law)”, a supporting affidavit and a “Financial statement”. Once completed, they need to be filed and served. Your spouse will have the opportunity to file responding documents. If no agreement can be reached by consent, then the Court will hear your application. We recommend that you obtain advice prior to filing an application.

Please note that the above is not legal advice. The above is general legal information. If you need advice in relation to spousal maintenance, please book an appointment with one of our experienced family lawyers.