Spousal Maintenance

Spousal maintenance is financial support that one party to a marriage or de facto relationship pays to the other after separation. It is separate from child support (which is for the children) and separate from the property settlement (which divides assets). The principle behind it is straightforward: a person has a responsibility to financially support a former spouse or partner if that person cannot reasonably meet their own reasonable living expenses and the other person has the capacity to pay. At Bruce Dulley Family Lawyers we advise Brisbane clients on claiming, defending and negotiating spousal maintenance.

The law that applies depends on your situation but the test is essentially the same. For married couples, spousal maintenance is dealt with under the Family Law Act 1975 (Cth); for de facto couples, including same-sex couples, the equivalent is de facto partner maintenance under the same Act. In both cases the Court applies a two-part test. First, does the applicant have a genuine need — that is, are they unable to adequately support themselves? Second, does the other party have the capacity to pay — do they have income or resources beyond their own reasonable needs? Both limbs must be satisfied. A claim fails if the applicant can support themselves, and it also fails if the other party genuinely cannot afford to pay.

In assessing need and capacity, the Court looks at a range of factors set out in the legislation: the age and health of each party, their income, property and financial resources, their capacity for employment, whether one party has the care of children, what constitutes a suitable standard of living, and the duration of the relationship and the effect it has had on a party's earning capacity. This last point is significant. Where one partner gave up or reduced their career to raise children or support the other's career, they may have a reduced earning capacity that justifies a period of support while they re-establish themselves.

Spousal maintenance can take different forms. It may be periodic — regular payments, often weekly or monthly — for a defined period to help a person get back on their feet, or it may be paid as a lump sum, sometimes factored into the property settlement. Urgent or interim maintenance can also be ordered early in a case where a party has an immediate need before the final settlement is worked out. Many maintenance arrangements are resolved by agreement and recorded in Consent Orders or a Binding Financial Agreement rather than fought out in court.

Time limits apply and they are important. Married couples must generally apply for spousal maintenance within 12 months of their divorce becoming final. De facto couples must apply within two years of separation. If you miss these deadlines you need the Court's special permission to proceed, which is not guaranteed, so it is important to obtain advice early.

It is also worth understanding what can bring a maintenance obligation to an end. Periodic spousal maintenance generally ends if the receiving party remarries (unless a court otherwise orders), and it can be reviewed or ended if there is a significant change in either party's circumstances — for example, if the recipient's income increases or the payer's capacity falls. Entering a new de facto relationship is a relevant factor the Court can consider.

Whether you may need support to get back on your feet after a relationship in which you were financially dependent, or you have received a claim for maintenance and need to know where you stand, we give clear, realistic advice and work to resolve the issue efficiently. Every family law matter is different. The information on this page is general only and is not legal advice. To discuss your situation in confidence, request a confidential consultation with our Brisbane family law team.