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Spousal maintenance: navigating finances post-separation

After a relationship ends, one of the primary concerns our clients face is how to sustain themselves financially and maintain their lifestyles.

In situations where our clients cannot adequately support themselves following a relationship breakdown, they may be entitled to receive spousal maintenance from their former partner or vice versa.

Spousal maintenance refers to the provision of financial support from one spouse or de facto partner to their former partner following the breakdown of marriage or a relationship.

Spousal maintenance is provided in circumstances where one partner has relied on the other for financial assistance and finds themselves unable to meet their own financial needs in the aftermath of separation.

Whilst spousal maintenance is not an automatic right, it operates under the principle that individuals involved in a relationship breakdown should support each other to the extent of their capabilities should the need arise. This obligation may persist post-separation and, when necessary, even after divorce.

Unlike child support payments, which are paid through Services Australia, spousal maintenance is exchanged directly between the parties involved. Spousal maintenance differs from child support and can be paid in addition to child support.

Who is eligible for spousal maintenance?

A party may qualify for spousal maintenance only if they cannot adequately support themselves and the other party has the capacity to meet the shortfall they require to meet their reasonable living expenses.

The Federal Circuit and Family Court of Australia (‘the Court’) must consider additional factors when making spousal maintenance orders. These factors include, but are not limited to:

  • Whether the applying party has the care and control of a child or children;
  • The age and health of the parties;
  • The income, property and financial resources of each party;
  • What is considered a reasonable standard of living;
  • The party’s ability to engage in employment;
  • The duration of the relationship and its impact on the earning capacities of the parties.

How are applications for spousal maintenance made?

Parties may reach an informal agreement regarding spousal maintenance, but it’s crucial to understand that such an agreement would not be legally binding or enforceable. If this approach is chosen, parties must ensure they are not being pressured into an agreement that they feel does not align with their best interests.

If parties have independently reached an agreement on spousal maintenance and wish to formalise it in the context of their property settlement, in order to make the agreement legally binding, they can apply to the Court for either consent orders or a Binding Financial Agreement. (When discussing property settlements, we are referring to the legal process of dividing assets and liabilities between parties who were previously married or in a de facto relationship.)

If parties cannot come to an agreement on spousal maintenance, they have the option to submit an application to the Court for spousal maintenance orders.

How does the Court establish the spousal maintenance amount?

The Court takes into account various factors when establishing the spousal maintenance amount. These factors include, but are not limited to, the weekly expenditure, income and assets of each party involved.

Time limits

Applications for spousal maintenance must be submitted within specific timeframes. For parties who were married, the application must be made within 12 months of the divorce order taking effect. For de facto couples, an application for spousal maintenance must be made within two years from the date of separation.

Should a party wish to apply for spousal maintenance outside these timeframes, leave must be obtained from the Court.

How is spousal maintenance paid?

Spousal maintenance can be paid in a number of ways. It may be paid through regular periodic payments or as a lump sum. It may also include instances where the payer pays for certain types of expenses on behalf of the other party, for example, mortgage repayments.

Spousal maintenance is typically paid on a temporary basis, often until the parties finalise property settlement or for a specific period while one of the parties secures employment. Payments, however, can also be final, set for a fixed term or effective until a further order is made.

If you are seeking assistance in relation to a spousal maintenance matter, please do not hesitate to contact our office at 03 9670 4122 to arrange an initial consult.

By Nicholes Family Lawyers


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