Spousal Maintenance

Lawyer handing over paperwork for the mother to sign
What is Spousal Maintenance? 

Financial payments, either one off or a recurring amount, made to an ex partner. Spousal maintenance is a one-off or recurring payment, made by agreement between the parties where one party provides financial support to the other. The payment is intended to provide financial support to an ex partner after the relationship ends. Parties that have been married, and those that were in a de facto relationship are eligible.

Spousal maintenance forms part of an obligation that exists between partners to a relationship, as part of a duty to support one another. This duty can continue beyond even the separation of the parties.

A Court will only grant spousal maintenance if

  • one party has a real need, and cannot adequately support themselves because of age, incapacity or inability to work because they are taking care of children, and
  • the other party has the capacity to provide financial support to the other party, and
  • it is fair to grant an order for the payment of spousal maintenance in the circumstances.

Spousal maintenance is usually only granted in circumstances where:

  • One party cannot adequately support themselves (because of age, incapacity or they cannot work as they are looking after children),
  • The other party has the capacity to support the other financially,
  • It would be proper in all circumstances that the other party provide the support.

Spousal maintenance can be paid out of a property settlement, as a lump sum payment made to one party which is not child support. Spousal maintenance differs from child support, as it provides for the upkeep of the former partner, not for the child. Child support differs from spousal maintenance, because it is assessed and enforced through a separate agency (CSA Australia) and does not require Orders being made through family court.

You can apply as soon as you are separated. If you were married, you do not need to wait for your divorce to be finalised in order to apply. If you were in a de facto relationship, then you can apply as soon the day after you separated from your former partner.

If you were married, you must apply within 12 months of getting divorced or having your marriage annulled. If you were in a de facto relationship, you must apply within 2 years of the date of the relationship ending. You will need the Court’s permission to make an application outside of these time limits.

Mossensons can assist you in making an application for financial hardship to the Court, which is the first step. The next step is to file your application with the Family Court. As spousal maintenance is a financial order, it requires you to follow the process involved in making a financial order.

After you have fulfilled the pre-action procedures, you will need to file:

  • A form 1, telling the Court what you are requesting;
  • A form 13, setting out your financial position; and
  • An affidavit in support of your application.

Mossensons can assist you in advising and defending claims made against you for spousal maintenance. You can rely on Mossensons’ expertise and extensive experience in family law matters, to advise you in how to negotiate or defend an application for spousal maintenance made against you.