Spousal Maintenance

Following separation, if one party is unable to support themselves financially then they may be able to claim spousal maintenance from the other party. This is a consideration relevant in a property settlement and applies to both married couples (section 72 of the Family Law Act) and de facto relationships (section 90SF of the Family Law Act). Usually, spousal maintenance is paid for a limited period only, for example, until the children start school or while the payee undertakes training for employment.

Spousal maintenance is payable only to the extent that the payer is reasonably able to do so and only if the other party is unable to support herself or himself adequately, whether:

(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.

Once the Court has determined the entitlement of a party to spousal maintenance, it must then decide on the nature of the spousal maintenance Order i.e., the quantum (or amount); whether the Order should be periodical or for a lump sum; and for what period it should extend. In considering this, the following factors are relevant:

(a) the age and state of health of each of the parties;

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

(f) the eligibility of either party for a pension, allowance or benefit and the rate of any such pension, allowance or benefit being paid to either party;

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

(l) the need to protect a party who wishes to continue that party’s role as a parent; and

(m) if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;

(n) the terms of any order or declaration made or proposed to be made in relation to a party to the relationship or the property of the parties;

(o) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;

(p) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(q) the terms of any financial agreement or Part VIIIAB financial agreement that is binding on the parties to the relationship.

These factors are relevant in determining both whether the applicant party is unable to support himself or herself adequately, and in determining the reasons for this inability. The factors limit the matters which the Court may take into consideration on an application for spousal maintenance, and emphasise economic considerations such as issues of “need” and “capacity”, whereas questions of matrimonial conduct are not relevant.

The fact that a property Order has included a component or adjustment for section 75(2) factors known as “future needs” factors (See “The four step process” to property settlement) does not preclude the party in whose favour the property Order has been made from obtaining a spousal maintenance Order. However, where there is an application for both property alteration and spousal maintenance before the Court, it has been held that the proper approach is to deal first with the property application and then with the spousal maintenance application.

If you require assistance with a property settlement matter or to make an application for an order for spousal maintenance, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with one of our family lawyers at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.