Sometimes when a relationship breaks down one party has a legal obligation to support the other financially. This is called spousal maintenance.
There are two types of applications, depending on whether the relationship was a marriage or de facto:
1. Spousal maintenance:
This is where a husband or wife gives financial support to their former spouse when their former spouse can not adequately provide for themselves.
2. De-facto partner maintenance
This applies when the relationship was de facto and covers the same issues as spousal maintenance.
What is the difference between spousal maintenance, child support, and child maintenance?
There are different circumstances where one person from a relationship may be left unable to support themselves on their own after the relationship ends. The type of situation determines the type of maintenance required.
When a relationship dissolves and one party is suddenly left unable to support themselves financially, their former partner may be required to pay maintenance to them. This usually occurs when one person in the relationship made significantly more than the other because of the dynamics of the relationship or family.
When parents decide to separate or divorce, they will need to make arrangements to both financially support their children.
The amount of child support payable is determined by a formula set out in the child support legislation and depends on each parents income and the number of nights the children spend with each parent.
These child support payments can be agreed on privately between the parents or can be calculated and enforced by the Commonwealth child support agency. These payments cease once a child turns 18.
Child maintenance is similar to child support, except it continues after the child has turned 18 under certain circumstances.
The reason for this is usually because a child has special needs (such as a disability or mental health issue) or is undertaking study, which requires them to be financially supported by their parents after they turn 18.
Am I eligible for spousal maintenance?
When reviewing applications for spousal maintenance, the court considers:
- The ability of both parties to support themselves financially
- Your age, health and ability to work
- How the marriage affected each parties income during and after the relationship
The court must be able to see that you need the maintenance and that your previous partner can make the payments.
If you are unsure about your eligibility for spousal maintenance after a de-facto relationship, you can read the de-facto property regime. Alternatively, you can contact one of our lawyers for more information.
Starting a new relationship
If you marry again, you will most likely not be eligible for spousal maintenance from your previous partner, except in particular circumstances that are decided by the court. If you enter into a new de facto relationship, the court will assess your situation and determine whether you can support yourself or not.
Is there a time limit to apply for spousal maintenance?
For married couples, you must apply for spousal maintenance within twelve months of finalising your divorce.
If your relationship was de facto, you must apply for de facto partner maintenance within two years of the relationship ending.
How do I apply for spousal maintenance?
If you and your previous partner agree on the terms of maintenance, they can be written up into legally binding consent orders by the court.
In cases where parties can not reach an agreement, an application can be made to the court to assess the situation, even if you are not yet divorced and only recently-separated.
In either case, the best course of action is to get legal advice.
How can I get support during this process?
We are specialist family lawyers who support people as they navigate complicated family situations. You won’t have to worry about misunderstanding legal jargon or sourcing the right information; we explain everything in language that makes sense while supporting you until your matter is settled.
Contact one of our offices in the Sydney region for more information.
Read our plain English handbooks
These fact sheets are designed to provide an overview of the relevant issues and systems so that you have a better understanding of the process.
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