Spouse Maintenance and Family Lawyers Sydney, NSW, Australia

Separation is a difficult process and for many it is made even more difficult due to the fact that the financial support once received from their former spouse has ceased.

The law provides that a party to a marriage (or de facto relationship) has a duty to support and maintain the other party if the other party is unable to support themselves and if the supporting party is reasonably able to do so.

This financial support is referred to as ‘Spouse Maintenance’.

How Do I Get Spouse Maintenance in Australia?

It is always in parties’ interest to reach an agreement with respect to their family law matters without the need for Court intervention. This will not only save time but also money and stress.

If you and your partner can reach an agreement with respect to spouse maintenance payments then you may enter into a spouse maintenance agreement.

If you are unable to agree then you will have to apply to the Court for a spouse maintenance order.

What Is Considered When Making a Spouse Maintenance Order in Australia?

If you are the party seeking spouse maintenance order then you will be referred to as the Applicant. When making a decision for spouse maintenance the Court considers your needs together with your former spouse’s capacity to pay.

When considering your needs, the Court needs to satisfy itself that you are unable to support yourself adequately having regard to:

  1. Your age;
  2. Your physical or mental incapacity for employment;
  3. Whether you are caring for a child of the marriage who is under the age of 18; and
  4. Any other adequate reason.

The Court will also consider the following about both of you:

  1. Your income, property and financial resources.
  2. You ability to work.
  3. Whether the marriage has affected your ability to earn income.
  4. What is a suitable standard of living.

To get a general idea as to whether you will be required to pay spouse maintenance and if so how much, you may do the following exercise:

Does the other party have the need for spousal maintenance?

This is generally calculated by adding up the other party’s reasonable weekly expenses, and comparing those to their weekly income.

Expenses may include, but are not limited, to mortgage/rental payments, groceries, utilities, petrol, car maintenance, pharmaceuticals and other everyday expenses. 

Once you have a figure for their weekly expenses, deduct that figure from their weekly income (if they are working). If they are not working, they will generally meet the legislative requirements to prove a need for maintenance.

If their weekly expenses exceed their income, then they will generally meet the legislative requirements to demonstrate a financial need and the excess amount is what they would seek by way of spousal maintenance payment.

For example

if your weekly expenses amounted to $700.00, and your net income was $500.00/week, you would seek a weekly spousal maintenance payment of $200.00/week.

Do you have the capacity to pay?

This is generally determined much the same way as in point 1 above. If after deducting your expenses from your income you have “extra money” left over then you most likely will be deemed to have the capacity to pay.

A helpful form to use when doing these calculations is the Financial Statement which can be found on the Federal Circuit Court’s website under the tab ‘Forms & Fees’.

When Do Maintenance Payments Cease?

Often the court is reluctant to make long term final spouse maintenance orders. It is not uncommon for a spousal maintenance order to cover a period to enable the other spouse to complete a course of study or training to enable him or her to re-enter the workforce.

Maintenance payments for a spouse will usually cease upon their remarriage, forming a de facto relationship, obtaining employment, death, or upon the death of the person making maintenance payments.

Is There a Time Limit for Applications for Spouse Maintenance?

Married couples must make an application for spouse maintenance within 12 months of their divorce becoming final.

If you were in a de facto relationship, you have 2 years to make an application for spouse maintenance from the date of the breakdown of the relationship.

Spouse Maintenance Solicitors Surry Hills, Sydney, NSW & Australia

If you would like further information regarding spousal maintenance or advice on this area please contact our Family Law Solicitor Monique Loveday on 9281 5088 or fill out our online contact form.

This information is general in nature and is not intended to be relied upon as legal advice. We urge that you obtain legal advice before acting upon anything you read in this article.

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