Family Law: What Is Spousal Maintenance?

It is extremely common for one of the parties in a relationship to be the main ‘breadwinner’ – the one that earns the higher income and provides financial support to the other party and the children, if they have any. This financial dependence can sometimes lead to feelings of helplessness and being unable to leave an unhappy or abusive relationship. What a lot of people don’t realise is that there is a right, at law, for the financially dependent party to receive continued financial support from the other party after separation if the other party is able to provide it. This support is known as ‘spousal maintenance’ and is available after separation of both marriages and de facto relationships.

The courts are usually asked to deal with three different types of spousal maintenance applications:

(a)   urgent spousal maintenance provides immediate support to a party who has just separated and is in desperate need of financial assistance;

(b)   interim spousal maintenance provides support from the time the application is determined until a final hearing; and

(c)   final spousal maintenance provides ongoing support into the future beyond finalisation of the property proceedings between the parties. The courts are reluctant to make this kind of order and tend to only do so where appropriate adjustment cannot be made in the substantive property proceedings to account for the greater future financial need on one of the parties.

When considering an application for spousal maintenance, the court asks, first, whether the party seeking spousal maintenance isunable to support themselves and, second, whether the other party is reasonably able to pay? The court will take into account factors such as:

(a)   the age and health of the parties;

(b)   the income, property and financial resources of the parties;

(c)   the parties’ respective responsibilities to care for children aged under 18 years;

(d)   the standard of living enjoyed by the parties during the relationship;

(e)   the duration of the relationship; and

(f)   whether the relationship has affected a party’s ability to earn an income (for example, where one party has not worked for a number of years due to looking after the home and children).

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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