Family Law: Spousal Maintenance

After separation or divorce, you’ll both need to adapt to a new way of living – which may require financial support from one former partner to the other.

One party provides spousal maintenance to the other when the recipient is unable to sufficiently provide for themselves. Determined by the Family Court, this monetary assistance can apply to both married and de-facto couples.

As such maintenance is a complex field of law, you should always receive specialised legal advice tailored to your particular circumstances.

Uncertain of your rights and responsibilities? Please call our spousal maintenance lawyers in Perth. We will guide you through this legal process so that you can start the next chapter securely.

Get help

What is spousal maintenance?

Spousal maintenance is a Court-ordered payment from one former partner to another after separation or divorce, in the case that the claimant is unable to support themselves sufficiently. These payments are separate from both child support and adult child maintenance.

Generally, this payment is spent on any shortfall in daily expenses, such as household bills and childcare fees that the financially-dependent party cannot afford on their own.

Discover the different types of spousal maintenance in WA

Lump sum

In situations where the party responsible for maintenance lacks the necessary income to make consistent ongoing payments, a one-time payment may be necessary.

If there is reason to believe that the paying party has deliberately put themselves in such a situation in a bid to avoid spousal maintenance, the Court will consider the nature and value of their assets to confirm whether they can afford periodic payments.

The party who receives the lump sum must ensure this money is spent on reasonable living expenses, which they have demonstrated to the Court to be too expensive to cover independently.

Interim

Interim spousal maintenance can be requested if one party needs financial assistance right after the relationship or marriage ends. Importantly, this order cannot be issued until both parties have filed affidavit evidence and a financial statement with the Court.

An interim order is a provisional measure that is in effect until the issue is addressed or resolved by agreement permanently, along with all other matters related to the division of property.

Urgent

An urgent spousal maintenance order is usually made in emergency circumstances when there is a serious need but not enough time for parties to provide evidence.

These applications are dealt with summarily, so parties do not have to provide the Court with details of their financial circumstances. Payment can be made in one lump sum or periodically.

Support with spousal maintenance claims

To receive spousal maintenance in Perth, you apply with the Family Court of Western Australia. This application must include:

  • An affidavit and financial records that prove you cannot support yourself and/or your children independently
  • Evidence that your former partner can afford to make the requested payments
  • Evidence to justify the amount of spousal maintenance you are seeking

At Affinitas Legal, we offer tailoredadvice on your eligibility, as well as how to defend any such claims brought against you. Our family lawyers in Perth can support and represent you as required, ensuring the resulting legal process runs as smoothly and stress-free as possible.

Receive personalised legal advice on spousal maintenance in WA.

Get help

Frequently asked questions

Am I eligible for spousal maintenance in WA?

Under sections 72 and 90SE of the Family Law Act 1975, former partners of both married and de facto couples are eligible to apply for spousal maintenance after the date of separation.

When deciding whether to issue a Spousal Maintenance order, the Family Court will take into account the following factors:

  • The care and control of the children under the age of 18 years;
  • The commitments of each of the parties to support themselves and other persons
  • The age and state of health of the parties;
  • The capacity for gainful employment
  • The income, property and financial resources of each of the parties;
  • The eligibility of the parties for a pension, allowance or benefit;
  • A standard of living in all the circumstances that is reasonable;
  • Whether payment would increase the earning capacity of the other party;
  • The rights of any creditors;
  • Any contribution to the income, earning capacity, property and financial resources of the other party;
  • The duration and impact marriage;
  • The nature of cohabitation with any other person;
  • The terms of any property settlement;
  • The child support payable and being paid;
  • The terms of any binding financial agreement;
  • Any fact or circumstances in the opinion of the court the justice the case requires to be taken into account.

Know that your eligibility for spousal maintenance will be impacted if you remarry or enter into a new de facto relationship.

Learn more with our guide to when you can claim spousal maintenance.

How do I apply for spousal maintenance?

To file a spousal maintenance application, you must provide evidence that there is a legitimate need for financial support and that the paying party can afford such payments.

For tailored support with your application, please contact our Family Law specialists.

What are the time limits for applying?

You have a 12-month window from the date of divorce to submit an application for spousal maintenance. For those in a de facto relationship, this timeframe extends to two years from the date of the final separation.

Failure to file within these specified periods may require you to request special permission from the court for an extension. Approval for an out-of-time application is contingent upon a valid and compelling reason for the delay.

How long does spousal maintenance last?

As each case is unique, the spousal maintenance payment period will be determined by its distinct circumstances. The Court will consider a variety of factors when deciding whether to make an order and determining its duration. Usually, these factors include:

  • The age of each party and the remaining years of possible employment for each
  • The age of any shared children and the degree of childcare required
  • The health status of the claimant in regards to disability, illness or incapacity that may limit earning potential.

Do you have to pay spousal support during a separation?

Spousal maintenance payments are not automatic or guaranteed. This financial support will only be enforced if the Court approves it after weighing up the claimant’s needs and the capacity of the respondent to make such payments.

Will I still receive spousal maintenance if I begin a new relationship?

No. Under sections 82 and 90SJ of the Family Law Act 1975, you will no longer be eligible for spousal maintenance if you enter into a new de facto relationship or marriage, unless there is a specific order from the Court.

Can spousal maintenance be backdated?

No. The Court will not backdate a spousal maintenance order to commence on a previous date. Typically, this financial support only starts on the exact day that the order is issued.

Does spousal maintenance affect Centrelink benefits?

Yes. Spousal maintenance will usually impact Centrelink benefits. This is because Centrelink views these payments as part of the recipient’s income.

Consequently, this could lead to a reduction in means-tested government benefits, including but not limited to the Newstart Allowance.

Is spousal maintenance tax deductible?

If you are paying spousal maintenance, it is not tax deductible.

However, you won’t be taxed on any maintenance payments you receive if they’re meant for you as a current or former spouse of the person making the payments, to support a child of theirs, or for the benefit of a child from the other side of the marriage. This exemption also covers maintenance received by a de facto partner.

Importantly, this exemption only applies if the payer is making the payments with the right intentions, as opposed to attempting to minimise taxable income.

Testimonials

WHAT OUR CLIENTS SAY

Secure the financial support you deserve

Our Family Law team can help you to fully understand your legal situation surrounding spousal maintenance in WA. We will empower you to make informed decisions that will protect you, your loved ones and your future.

Meet our team

Learn more about spousal maintenance