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What Is Spousal Maintenance and Do I Have to Pay It?
A common question that we are asked by our clients is: What is spousal maintenance?
It is the financial support of a spouse to either a marriage or de-facto relationship in the event that they are unable to financially support themselves. An order can be made for the payment of spouse maintenance on either a periodic (weekly, fortnightly, monthly) basis, on a lump sum basis or, by way of payment to third parties, such as payment of rent, mortgage payments or payment for a motor vehicle.
An application for spousal maintenance can be made at any time after separation but must be made within 12 months of a divorce order being made unless leave is granted. An application for spousal maintenance in a de facto relationship can be made within two years of separation. An extension of time cannot be applied for in de facto relationship cases.
Spouse maintenance orders are not generally made for the long term. Generally, spouse maintenance orders are made to allow the party in need a period of time to enable that party to re-house themselves, complete a course of study or re-enter the workforce with a view to becoming self-sufficient.
Do I have to pay my spouse maintenance?
Each party to a marriage or a defacto relationship has the liability to financially support the other party to that relationship. The court has the power to order a spouse maintenance if:
- the applicant is not able to meet his or her own reasonable needs; and
- the respondent has the capacity to pay or to contribute to those needs
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- The reasonable needs of the applicant? When determining the “reasonable needs” the Court can have regard to the standard of living enjoyed during the marriage.
- The capacity of the applicant to meet his/her own needs? For this the Court will look at their income and earning capacity if they are not currently employed.
- The capacity of the respondent to contribute to the needs of the applicant?
The Court will also consider (amongst other things) all the issues set out in s 75(2) of the Act. These considerations include:
- the age and state of health of the parties;
- the income, property and financial resources of each of the parties;
- whether either party has the care of any child under 18 years of age;
- the commitments of each party; and
- the cost of a “reasonable” standard of living.
The liability of a party to pay for the financial support of their spouse will depend on his/her capacity to contribute to the reasonable needs of that party. Only if the applicant has a need and the respondent an ability to pay should a spousal maintenance order be made. The court can, however, after satisfying a need and ability, refuse to make an order for spousal maintenance in Australia if it considers that it would not be “proper” to do so.
What is Spousal Maintenance?
How much do I need to pay?
The amount to be paid is dependent on the particular circumstances of your matter and will depend on your income and reasonable living expenses and outgoings and that of your spouse. There is no set amount that is applicable to all matters.
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- What are the reasonable expenses of the applicant
- What is the applicant’s income to meet those expenses.
The Court will also have regard to child support being paid, or reasonably payable.
The Court does not however have regard to an income tested pension.
- What is the shortfall of the applicant’s expenses?
When determining an application’s reasonable needs, the court will also consider their ability to earn an income. An applicant who lacks the ability to earn an adequate income, may be given an order for a limited period enabling the applicant to maintain himself or herself and to enter on a training course to enable the applicant to obtain an adequate income.
After the court has found that a party is unable to financially support themselves, the court must then determine whether the other party has an ability to assist with that financial support by having regard to
- The income of the respondent;
- The reasonable expenses of the respondent;
- What if anything remains after the respondent meets their own expenses.
When considering the respondent’s ability to pay spouse maintenance, the court will not make an unreasonable order that the applicant resort to their own capital, such as increase the liability over real property to support themselves
The Court does not need to ensure that a party to a marriage remains in the same standard of living as they had, during the marriage, however they will have regard to the standard of living and will make orders accordingly, if the respondent’s means permit it.
If a long term spouse maintenance application is sought, the court will have regard to the entitlement of that party to property settlement. Often, the result of a final determination of property issues will obviate the need for spouse maintenance.
Who is entitled to Spouse Maintenance in Australia & who must pay?
A person to a marriage is liable to maintain the other person by way of spouse maintenance payments to the extent that the paying person has the capacity to do so AND the person receiving the financial support is unable to support himself or herself adequately by reason of:
- having the care and control of a child of the marriage under the age of 18 years;
- their age or physical or mental incapacity for gainful employment; or
- for any other adquate reason, including such things as family income and resources, commitments to support oneself and children, and the
- standard of living that is reasonable within the context of the family.
Contact Us
When seeking advice about financial issues following marriage breakdown, please speak to one of our Accredited Specialists at Watts McCray as to your eligibility, or liability, for spousal maintenance in Australia and how it might assist you in your situation. If you are unsure of your rights in any given situation, they will help to clarify the issue, explain what you may be entitled to, and explain the process of applying for maintenance payments from your former partner or spouse
