It is not common knowledge that, in Australia, when a marriage or a de facto relationship ends, one party to the relationship may be ordered by the Family Court to “financially maintain” the other party to the relationship, by way of “spousal maintenance”.
The Family Law legislation sets out when a party might be ordered to financially assist their former spouse when their marriage or de facto relationship has broken down, namely when one party to the former relationship is unable to meet their own reasonable expenses from their personal income or assets following the ending of the relationship.
When the need arises for one party to a former relationship to “financially maintain” the other party, the level of support will depend on what the “supporting party” is able to pay, as well as the level of support required by the “supported party”. It should be noted however that both parties to the former relationship have an equal duty to support and maintain the other as far as they can, and this obligation can continue even after separation and divorce.
What is Spousal Maintenance?
The Family Court has the power to make an order for one party to a former relationship to pay “spousal maintenance” to the other party to the former relationship only in circumstances where the party making the application for spousal maintenance is, following the breakdown of the relationship, is unable to adequately meet his or her own reasonable financial needs, and the other party to the former relationship has the means and ability to pay spousal maintenance.
Spousal maintenance is where the future personal income and/or current capital assets of the parties to a former relationship are taken into account as if they were current income and/or assets of the relationship, to be distributed between the parties at the cessation of the relationship. In certain circumstances, where there is a discrepancy between each of the parties to the former relationship in this regard, one party may have an obligation to provide ongoing financial support to the other party in the form of weekly or lump sum payments (properly referred to as “spousal maintenance”).
The liability of one party to a former relationship to maintain their former partner financially may continue until the death of their former partner, or until their former partner has the ability to support themselves financially, independently of the “supporting party”. Usually, this will coincide with the occurrence of a specific event, i.e., the “supported party” completing adequate training or re-skilling, securing employment or commencing a new de facto relationship/marriage.
If the parties to the former relationship were married, any application for spousal maintenance must be made within 12 months of the parties’ divorce being finalised.
If the parties to the former relationship were de facto partners, any application for spousal maintenance must be made within 2 years of the cessation of the de facto relationship.
In extenuating circumstances, however, the Court may grant leave to a party to make an application for spousal maintenance outside of the above mentioned time limits.
Spousal Maintenance v Child Support
It is important to note that spousal maintenance is not child support.
Child support is an amount paid by one party to a former relationship (such relationship which produced children) to the other party of the former relationship, for the benefit of the children of the former relationship. Any obligation for a person to pay child support may be in addition to an order that that person pays spousal maintenance. The Department of Human Services administers the Child Support Scheme in Australia.
What if the “supported party” entered into a new relationship?
A “supported party” will no longer be entitled to spousal maintenance if they re-marry. If a “supported party” commences a new de facto relationship, the Court will consider the financial relationship between the “supported party” and their new de facto partner when determining whether the “supported party” can now support himself or herself adequately.
What does a Court consider?
Spousal maintenance is not an automatic right. In deciding whether a party to a former relationship is entitled to spousal maintenance the Court will consider the needs of the applicant, together with the respondent’s capacity to pay any spousal maintenance. Other considerations including the parties’:
- Financial Resources;
- Ability to work;
- Ability to earn an income following the breakdown of the marriage/de facto relationship; and
- What each party considers a suitable standard of living (largely based on the standard of living of the parties during the relationship).
Usually spousal maintenance will be ordered where one party to the former relationship must remain out of the workforce following the cessation of the relationship to raise young children of the relationship, and as a result is unable to exercise their income earning capacity.
Other examples include where one party has been out of the workforce for a significant period of time raising the children of the relationship and is now de-skilled or unemployable due to age, or where one party is unable to work due to illness.
A party may be obliged to pay spousal maintenance to their former partner in various ways, including through periodic and regular payments or by way of a lump sum payment. An obligation to pay spousal maintenance to a former partner may also exist for different periods of time.
Although generally intended to operate only for a short period of time following separation to enable a “supported party” to get back on their feet, in certain circumstances, where appropriate, spousal maintenance may be ordered to be paid for a longer period of time.
The calculation of and assessment for the need of spousal maintenance requires a deep understanding of family law and time limits to make an application for spousal maintenance apply.
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