Financial support of one spouse by the other – it may not end at separation…

One of the questions many of our family law clients ask is whether they will have to pay or, conversely, are entitled to receive, any financial support from their former spouse or de-facto partner after separation.

When our clients enter into a marriage or de-facto relationship, may of them do not realise that in certain circumstances, they may be liable to maintain the other spouse when the relationship breaks down by paying what in family law is called “spousal maintenance”.

What is spousal maintenance and when is it payable?

Spousal maintenance is when one person provides ongoing financial support for their former partner.

Under the Family Law Act, if one party to a marriage or de-facto relationship is unable to support herself/himself, the other party may have to pay him or her spousal maintenance, provided they are in a financial position to do so.

The most common situations where one party is unable to support themselves is where they do not earn any income or earn a limited income because of their parenting commitments, physical or mental incapacity for gainful employment, or for any other adequate reason.

When assessing the ability of a spouse to support themselves financially for the purpose of assessing their eligibility for spousal maintenance, any government benefits they may be receiving are not taken into account.

Spousal maintenance is different from child support and, if all legal requirements are satisfied, will be payable on top of any child support.

However, if the party from whom the spousal maintenance is being sought cannot afford to pay it on the basis that they have no surplas of funds left after paying their own reasonable expenses, then no spousal maintenance will be payable.

How do you seek spousal maintenance?

If you think you may be entitled to spousal maintenance, or alternatively, that your spouse may seek maintenance from you, we would be happy to assist you with resolving that issue either by consent with the other Party, or through the Court.

An Application to the Court for spousal maintenance following the breakdown of a relationship can be made at any time after separation. The parties do not have to be divorced. However, once the parties are divorced, the Application for spousal maintenance has to be made within 12 months from the date the divorce becomes final.

In the case of de-facto relationships, any application for spousal maintenance has to be made within 2 years of the date of separation or with the permission of the Court if the 2 year limitation period has expired, provided the party seeking maintenance can prove that significant hardship would be caused to him/her if the Court did not allow the Application to be filed outside of the limitation period.

How is spousal maintenance paid?

Spousal maintenance can be payable by way of periodic amounts (e.g. weekly or monthly instalments) or as a lump sum.

If it is paid as a lump sum, it is possible that it will be part of the parties’ overall property settlement. In other words, a portion of the value of the property received by a party through property settlement may be characterised as lump sum spousal maintenance.

For how long is it payable?

The period during which the spousal maintenance will be payable will depend on the parties’ individual circumstances including their parenting commitments, employment situation, age, health, or any other relevant factors.

Generally, the Orders made by the Court provide for spousal maintenance to operate for a limited period of time following separation to allow the recipient to get back on their feet. One of the common examples is where the spousal maintenance is payable to the party who has the primary care of young children until the children reach school age and the carer can then obtain gainful employment.

However in certain circumstances, the Court may find it appropriate that the recipient receive spousal maintenance for a longer period of time.

If the Orders for spousal maintenance do not specify its duration, the liability to pay spousal maintenance is deemed to be indefinite, but it will nevertheless automatically cease when the recipient remarries or dies.

However, if the financial position of either spouse changes (e.g. due to changes in their employment, parenting commitments, health or family circumstances) then either party can apply to the Court to cary the existing Orders for spousal maintenance. Upon hearing the parties’ application, the Court may or may not change the Orders with respect to the duration or the amount of spousal maintenance or make an order for it to cease.

Please note that the information contained in this article is of a very general nature and there are many more complexities to the issue of spousal maintenance than we can cover here.

If you have any questions regarding spousal maintenance, please contact Brazel Moore Lawyers’ senior family lawyer, Julia Ejelovicth on (02) 4324 7699 and Julia will be happy to assist you with your enquiry and if needed, represent you in any family law application for spousal maintenance.