What is Spousal Maintenance?
Spousal maintenance is financial support paid by one party to their former spouse when the latter is unable to support themselves adequately. This can occur after the breakdown of a marriage or de facto relationship.
The Family Law Act 1975 outlines the conditions under which spousal maintenance may be granted, aiming to ensure that neither party faces undue financial hardship following a separation.
Eligibility for Spousal Maintenance
Spousal maintenance is not guaranteed and is assessed on a case-by-case basis. To be eligible, the applicant must demonstrate a need for financial support, and the respondent must have the capacity to provide that support. Key eligibility criteria include:
Financial Need
The applicant must show that they cannot meet their reasonable living expenses independently. This could be due to limited income, health issues, caring responsibilities, or other factors.
Capacity to Pay
With the average divorce in Australia occurring after 12 years of marriage, the entire process can be both emotionally taxing and costly. Divorce applicants must have sufficient financial resources to pay maintenance without facing undue financial hardship themselves.
Application Timing
Spousal maintenance claims must be lodged within 12 months of a divorce order being made final, or within two years of the end of a de facto relationship. Extensions may be granted, but they are not guaranteed and must be justified.
Factors Considered by the Court
When assessing spousal maintenance claims, the court examines various factors to determine whether maintenance should be granted, and if so, how much should be paid. These factors include:
Duration of the Marriage or Relationship
Longer marriages or relationships may be viewed differently compared to short-term relationships, especially where one party has sacrificed career opportunities or financial independence.
Financial Resources and Obligations
The court considers both parties’ income, assets, debts, and financial commitments. This includes any income from employment, investments, and government benefits.
Health, Age, and Ability to Work
The health, age, and employment capacity of both parties play a significant role. For instance, a party with a disability or who is nearing retirement age may have a reduced capacity to earn an income.
Care of Children
If one party has the primary care of children from the relationship, their ability to work and earn an income may be impacted, justifying a need for maintenance. It is also worth considering and accounting for the important role an independent children’s lawyer plays throughout the divorce process. Getting a fair child custody arrangement is also a priority for many parents, which is where an experienced lawyer can help.
Standard of Living
The court aims to maintain a reasonable standard of living for both parties, although it recognises that both may need to adjust their expectations.
Types of Spousal Maintenance
There are several types of spousal maintenance, which can be structured based on the needs of the parties involved; they include:
1. Periodic Payments
Periodic payments are the most common form of spousal maintenance, where the respondent makes regular payments to the applicant on a weekly, fortnightly, or monthly basis. The amount and frequency of these payments can be adjusted by the court if there are changes in circumstances, such as an increase in the payer’s income or the recipient securing employment.
2. Lump Sum Payments
Lump sum payments involve a one-off payment made by the respondent to the applicant, designed to cover the applicant’s needs for a specified period or indefinitely, depending on the agreement or court order. This type of spousal maintenance is often used when a clean break is preferred.
3. Immediate Needs
Immediate needs maintenance, sometimes referred to as urgent or interim maintenance, is provided to address pressing financial requirements that cannot wait for a full hearing or final decision by the court. This type of support is usually awarded short-term to cover essential expenses.
How to Apply for Spousal Maintenance
Applying for spousal maintenance involves several steps:
Seek Legal Advice
Many clients ask if you need a lawyer to get a divorce. While it is possible to handle the process independently, we’ve encountered many self-represented clients who faced complications or had unexpected issues arise.
It’s crucial to consult with an experienced divorce lawyer to understand your rights and options. They can help guide you through the application process and represent your interests in court.
File an Application
Applications for spousal maintenance are made through the Federal Circuit and Family Court of Australia. This involves completing the required forms and providing evidence of your financial situation, needs, and the respondent’s capacity to pay.
Provide Financial Disclosure
Both parties must disclose their financial circumstances, including income, assets, liabilities, expenses, and whether or not a binding financial agreement is in place. Full and honest disclosure is mandatory and can significantly impact the outcome of the case.
Court Hearing
If the parties cannot reach an agreement, the court will schedule a hearing where both sides can present their case. The court will then make a decision based on the evidence provided during the application process.
Spousal Maintenance for De Facto Relationships
Spousal maintenance is also available to de facto partners under the Family Law Act 1975. The eligibility criteria and application process are similar to those for married couples.
However, you must prove that the relationship meets the legal definition of a de facto relationship under Australian law.
The Australian Law Reform Commission offers insights into legislative changes, guidance on best practices, and up-to-date research that can help you understand your rights.
Importance of Informed Legal Advice
Navigating spousal maintenance claims can be complex, and outcomes vary depending on individual circumstances. Engaging with an experienced Sydney divorce lawyer such as Arcadian Legal can ensure that your rights are protected and that you receive the support you are entitled to.
We can help interpret legal requirements, gather the necessary financial documentation and present a solid case to the court. We can also help negotiate settlements outside of court, which can save time, reduce stress, and minimise legal costs.
Legal advice ensures that you are fully informed of your options and that your financial security is prioritised during and after the divorce process.
Contact Arcadian Legal today!
