Spousal Maintenance

Spousal maintenance is the common term used in Australia to describe financial support paid by one party, to the other, following a relationship breakdown (both marriages and de facto relationships). This usually involves the payment of money, often at regular intervals such as weekly or monthly. Spousal maintenance, (also known by the American term, alimony) exists to ensure that where possible, the financially weaker party can support themselves following a separation.

The maintenance is usually temporary or ‘interim’ and provides some financial security during a period when, for example, the payee may choose to re-train, enter the workforce, commence work following the children having reached independence and/or generally re-establish themselves. Sometimes the maintenance can be ongoing. Importantly, spousal maintenance is separate from child support.

Maintenance can be negotiated into a property settlement and there’s no need to make an application to the Court if an agreement can be reached between the parties and/or their lawyers.

If agreement cannot be reached, an application for maintenance may be made at the same time or separately from an application to the Court for property orders.

There are various ways that spousal maintenance can be paid

Some examples include:

• Periodic payments which continue indefinitely (known as ‘final’) or payments which continue for a fixed term or until further order (known as ‘interim’);
• The payment of a lump sum (capitalised maintenance);
• A person can have a right to occupy a home;
• A person can have a right to use a car.

What does the Court consider when determining spousal maintenance?

Spousal maintenance laws provide that a party to a marriage or de facto relationship is liable to maintain the other party if they are reasonably able to do so but only if the other party is unable to support themselves adequately because of one or more of the following factors:

• They are caring for a child of the relationship who is under the age of 18 years; or
• They cannot work because of their age or because they have a physical or mental incapacity; or
• for any other adequate reason.

In considering whether to make an order for maintenance, the Court must also have regard to some of the following factors:

• the age and state of health of the parties;
• the income, property and financial resources of each of the parties;
• the physical and mental capacity of each of the parties for appropriate gainful employment;
• the commitments of either party necessary to support themselves or a child;
• the responsibilities of either party to support another person;
• the eligibility of either party for a pension, superannuation allowance or benefit either here or overseas;
• the duration of the marriage and the extent to which it has affected the income earning capabilities of each party;
• the desire of the party to continue in the capacity as homemaker and parent;
• a standard of living that, in all the circumstances, is reasonable where the parties have separated;
• if either party is cohabiting with another person, the financial circumstances relating to that cohabitation.

In making a decision, the Court will disregard any entitlement of the party to any income-tested pension allowance or benefit.

When will a court make an order for maintenance?

The liability to pay maintenance depends upon two basic matters:

1. The need of the applicant for maintenance; and
2. The ability of the respondent to pay maintenance.

How is a ‘need’ for spousal maintenance determined?

The applicant must first establish that they need maintenance. That is, that the applicant is unable to support themselves adequately without it. In simple terms, their weekly reasonable expenses exceed their income or their capacity to earn more income.  

An applicant for maintenance can still have some savings or other assets. It is considered legitimate for them to set aside a reasonable sum for future contingencies such as illness or other significant changes in life.

How is ‘capacity to pay’ determined?

The second threshold test is whether the respondent has the capacity to pay.

The ability to pay should be judged in light of all of the circumstances including money at a party’s disposal (including wages), capital position and current necessary expenses. In simple terms how much money is leftover at the end of every week/fortnight or month.

Time limits to apply for spousal maintenance and exceptions

In a case where the parties are married, a maintenance application can be brought at any time after separation as long as the parties have not been formally divorced for more than 12 months. After that time a maintenance application can only be made with the consent of both parties or with permission from the Court if certain grounds are satisfied.

In a case where the parties were living in a de facto relationship, a maintenance application can only be brought after the parties have separated and must be brought within 2 years after the parties have separated. After that time a maintenance application can only be made with the consent of both parties or with permission from the Court if certain grounds are satisfied.

Can I continue to receive spousal maintenance if I start a new relationship?

The short answer is yes. A maintenance obligation does not automatically end just because of a new relationship. However, most of the time maintenance orders will be drafted so that there are ‘terminating events.’ These usually include where the payee enters into a de facto relationship or remarries.

It’s important to remember that maintenance is different from child support. The payer’s child support obligation continues even where the payee has entered a new relationship or remarries.