It depends and will vary on the facts of each individual case. Under the Family Law Act 1975 (“the Act”) there is a responsibility on spouses and de-facto partners to financially assist their partners if the other’s income or assets are not sufficient to meet their reasonable expenses. This obligation can continue beyond separation.
This obligation is referred to as “maintenance” and it is when one partner is required to maintain the other after the relationship ends. The Family Court and Federal Circuit Court deal with three types of maintenance claims and they are:
- Spousal Maintenance; and
- De-Facto Partner Maintenance; and
- Adult Child Maintenance
NB: De-facto partner maintenance is treated differently to spousal maintenance and this article refers mainly to spousal maintenance. Please contact us for more information regarding de-facto partner maintenance.
The Act says, “A party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so if, and only if, that other party is unable to support himself or herself adequately whether:
- By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
- By reason of age or physical or mental incapacity for appropriate gainful employment; or
- For any other adequate reason.”
In some cases, the parties are able to resolve the issue of maintenance between themselves and agree to an appropriate payment. It is always preferred that the parties reach agreement between themselves before commencing legal proceedings. Parties can also attend family dispute resolution in an attempt to agree on spousal maintenance terms. The cases that are unable to reach agreement will be required to apply to the Court for an Order in relation to spousal maintenance. In this Application, both parties will be required to complete a detailed Financial Statement outlining their income, expenses, property, assets, liabilities and superannuation.
Courts Approach to Spousal Maintenance
There must be both a need from one party and an ability of the other party to pay. Therefore, it is a two-pronged test that will be considered by the Court. Maintenance will not be ordered by a Judge unless this test is satisfied. There are other factors the Court will be required to consider in relation to both parties, including but not limited to
- Income and financial resources;
- Capacity to earn income;
- Who has primary care of children under 18;
- If one party is responsible for supporting another person
- Present or future responsibility to pay child support
- Ability to work.
There is an extensive list of factors that are considered by the Court at section 75(2) of the Act.
Child Support vs Spousal Maintenance
Some people believe child support and spousal maintenance are the same thing. They are in fact two separate concepts and you can be liable to pay both, just as the other party could be entitled to receive both payments.
Spousal maintenance is a payment for the reasonable needs of the spouse whereas child support is payment specifically for costs related to the child/children. Although both payments usually go straight to the receiving spouse, they do have separate purposes.
How is Spousal Maintenance paid?
It can be paid in a lump sum or paid out periodically (e.g. monthly payments). It is often encouraged for maintenance be paid in a lump sum, simultaneously with a property settlement. One of the purposes of a property settlement is to completely sever the financial relationship between the parties. Where possible, a lump sum payment may be preferable.
When does Spousal Maintenance end?
The right to receive spousal maintenance payments will end if the person receiving the payments remarries (this may vary in exceptional circumstances) or the person paying the maintenance dies. It may also cease if the party receiving payments improves their financial circumstances by their capacity to earn income increases, they enter into a new de facto relationship or their responsibility to care for children significantly changes.
However, to end spousal maintenance you will have to apply to the Court to vary the Orders that were made.
 Family Law Act 1975 Section 72