Spousal Maintenance

Spousal MaintenanceWho can make an application for spousal maintenance?

In certain circumstances, a former spouse may be entitled to spousal maintenance. If spousal maintenance is payable, it is separate and in addition to any child support or property settlement which may be due.

A former spouse is liable to maintain the other party, to the extent that the former spouse is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately.

Legislative provisions relating to spousal maintenance

Section 72(1) of the Family Law Act (section 205ZC of the Family Court Act for de facto partners) sets out the three circumstances in which the need for maintenance to arise: —

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason.

The Court will then consider the future needs factors listed in section 75(2) of the Family Law Act (section 205ZD(3) of the Family Court Act for de facto partners) such as:

  • The age and health of the parties;
  • Whether either party has the care of a child of the relationship that is under
    the age of 18;
  • What is, in the circumstances, a reasonable standard of living; and
  • The financial resources of each party.

Basic principles relating to spousal maintenance

The Court is given very broad powers in relation to maintenance. Therefore it may not always be possible to predict what type of maintenance order is likely to be granted in response to an application.

There are however five basic principles that guide the Court’s discretion in granting maintenance orders. These are as follows:

1. The need and ability to pay maintenance
2. Compensation for economic disadvantage
3. Status, minimum loss or expectation damages principle
4. Rehabilitation
5. The ‘clean break’ principle

Recent trends show that the Court tends to focus on the first, second and fifth principles in its decision-making process. When must an application for spousal maintenance be made? For married couples, an application for spousal maintenance may be made:

  • Before divorce; or
  • After the divorce, provided the application is made within 12 months of the
    date on which the divorce order takes effect.

For de facto couples, an application for spousal maintenance must be made within 2 years of the date on which the relationship ended.

Show Comments