In many cases of marital or de facto relationship breakdown, individuals will provide financial support for their children but not their ex-partner. However, you may be required to pay or entitled to receive spousal maintenance under Section 75 of the Family Law Act (1975), depending on the circumstances of both parties.
In this comprehensive guide to spousal maintenance in Australia, we explain its definition, eligibility criteria and assessment so that you can fully understand your rights and responsibilities.
What is spousal maintenance?
Spousal maintenance is a formal agreement between former spouses or de facto partners, whereby one person receives financial support from the other following the end of their relationship. These payments are intended to provide temporary support to the receiver whilst they obtain education, seek employment, care for children and so on.
Referred to as alimony in the United States, spousal maintenance is distinct and separate from child support or adult child maintenance, as it is focused solely on providing for the former partner.
Spousal maintenance may be paid in one lump sum as part of the property settlement or in periodic monthly payments. These payments can be made in cash, via bank transfer or direct to providers to cover costs such as mortgage installments, healthcare, childcare and household utilities.
As spousal maintenance is not considered taxable income, you do not need to declare it to the Australian Taxation Office. However, you must notify Centrelink of this support if you are receiving income-tested Centrelink payments.
Who is eligible to receive spousal maintenance in Australia?
You may be eligible to receive spousal maintenance if:
- You need financial support to fund reasonable expenses; and
- Your former partner can afford to provide this support.
If you are unsure of whether you or your former partner is eligible to apply for spousal maintenance, please contact our divorce lawyers in Perth for tailored advice.
When can I apply for spousal maintenance?
You can apply for spousal maintenance in Australia from the date you separate with your former partner, and therefore do not need to wait for the divorce to be finalised if you are married.
Under Section 44(3) of the Family Law Act 1975, you must file a spousal maintenance application within 12 months of the date of your divorce order. According to Section 44(5) of the Family Law Act (1975), de facto partners will need to apply for spousal maintenance within two years of the date of separation.
If you miss the relevant time limit for your circumstances, then you are required to provide proof of hardship before being allowed to apply – which may not be accepted by the court.
How is spousal maintenance calculated?
The degree and duration of spousal maintenance payments is calculated on a case-by-case basis. In determining whether a person is entitled to receive spousal maintenance in Australia, the Family Court must consider, firstly, whether the claiming party has the capacity to adequately support themselves.
The claiming party’s ability to “adequately” support themselves is assessed at “the reasonable standard of living in the circumstances”. This is generally the same standard as the parties enjoyed during the marriage. However, in some situations this standard may be lower due a reduction in the parties’ current financial resources and income. For example, as a result of retirement.
Once the Court is satisfied that the claiming party cannot support themselves adequately, they turn to the question of whether the other party has the capacity to pay. Both parties must provide details of their financial position, in particular, their income and outgoings. The deficit or surplus of the party being potentially ordered to pay, is then considered.
Spousal maintenance in Australia may be ordered on an interim or final basis, by taking into account any other property settlement between the parties, and whether the claim is intended to have a transient effect only.
In summary, factors that may be considered during this assessment include:
- The age of both parties;
- The mental and physical health of both parties in relation to their ability to secure or maintain employment;
- Both parties’ standard and cost of living;
- The duration of the relationship and its effect on the applicant’s earning capacity;
- Which party is the primary caretaker or any shared children under the ages of 18;
- Any existing or future child support payments made to the applicant;
- Whether either party is eligible for a non-income-tested pension;
- Whether financial support would enable the applicant to fund professional development to gain employment;
- If the applicant has contributed to the other party’s income, property or other financial resources; and
- Whether either party has entered into a domestic relationship with another partner and, if so, the new partner’s financial circumstances.
Can you lose or change spousal maintenance?
Yes, it is possible to lose and update a spousal maintenance arrangement if circumstances change. Common situations in which people tend to apply for a spousal maintenance variation or discharge include:
- If a person receiving regular payments enters into a de facto relationship or marriage with someone else.
- If a person receiving regular payments gains employment or their income increases, spousal maintenance may no longer be necessary.
- If the person providing spousal maintenance experiences a change in their financial situation, such as an income reduction or loss of employment.
Get personalised legal support with spousal maintenance
Spousal maintenance can be arranged in court or outside of court with consent orders or a binding financial agreement. To determine the most appropriate solution for your circumstances, it’s important to seek the support of an experienced Family Lawyer.
At Affinitas Legal, we can assist you by providing legal advice in relation to your entitlement to receive spousal maintenance, or, alternatively, your capacity to pay spousal maintenance. Please contact our team for further information, or to book a preliminary appointment.
Disclaimer
General Advice Warning
The information contained on this brochure is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a suitably qualified lawyer.
All legal and other matters referred to on this brochure are of a general nature only and are based on Affinitas Legal’s interpretation of laws existing at the time and should not be relied upon in place of appropriate professional advice. Those laws may change from time to time and the information contained herein may be out of date.
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