Understanding Spouse Maintenance: Do you have to provide it? Are you entitled to it?

Posted on Sep 2, 2012 by Jillian Stibbard   |   Categories: Family Law

Spouse maintenance is financial support payable by one party to a marriage or de facto relationship to the other party, according to family lawyer, JILIAN STIBBARD.

It is paid in circumstances where one party is unable to support himself or herself adequately and the other has the capacity to assist financially.

Spouse maintenance is not automatic; an application must be made to the Court. It is available to:

a) a party to a marriage (under s72 of the Family Law Act 1975 (FLA)); or
b) a party to a de facto relationship (as defined under s4AA of the FLA) if the couple separated after 1 March 2009 (under s90SF FLA) BUT only if:

  1. The total period of the relationship is at least 2 years; or
  2. There is a child of that relationship; or
  3. That the party applying made substantial contributions and failure to make an order would result in serious injustice to the applicant; or
  4. That the relationship is or was registered.

Factors and features of spouse maintenance

The Court determines spouse maintenance based on factors such as a need for support and the other person’s capacity to pay.

Some of the 16 factors that the Court shall take into account when determining a spouse maintenance application are:

  • Age and state of health of the parties
  • Income, property and financial resources
  • Physical and mental capacity of each  for employment and a level of earnings
  • Care or control of a child or children under 18, and any child support received
  • Duration of marriage/relationship and whether that impacted on current earning capacity
  • Reasonable standard of living

Spouse maintenance can often be confused with property settlements, however they are different issues and are applied for separately. Broadly speaking, property settlements are principally based on contributions during the relationship and are designed to be a permanent separation of assets and liabilities between the parties.

Can you vary a Spouse maintenance order?

Spouse maintenance orders can be varied if a change in circumstances can be established.

The Court has wide powers to alter a maintenance order. It can be paid as a lump sum, as a periodic payment or as a transfer or settlement of property.

Spouse maintenance orders otherwise remain in force generally until:

  • the death of either party, unless, in the case of the payer, there was an express provision for the payments to continue after death; or
  • upon the remarriage of one party to the other, unless special circumstances exist.