SPOUSAL MAINTENANCE

Can I get paid Spousal Maintenance
and how is Spousal Maintenance calculated

When will Spousal Maintenance be payable

Spousal Maintenance | DIY Family Law Australia

When is Spousal Maintenance payable? Payment of Spousal Maintenance is not automatic.

When it is deciding a Spousal Maintenance application, the Court will look at the needs of the applicant spouse as well as the capacity of the respondent spouse to pay.

Spousal Maintenance involves balancing the “need” of one person against “ability to pay” of their former partner.

If one spouse has "a need" for more money, meaning they cannot meet their expenses and the other spouse has disposable income available such that there is an ability to pay, then Spousal Maintenance might be payable.  

Whether or not Spousal Maintenance is payable requires balancing and assessing the financial need of one spouse against the ability of the other spouse to pay.

The general principle is a person can be liable to maintain their former spouse, to the extent they can reasonably afford do so, if their former spouse is unable to support themselves adequately. 

You might have a desperate need for Spousal Maintenance to be paid to you and be eligible, but if your former spouse has does not have any income or the ability and capacity to pay Spousal Maintenance then Court will not order anything to be paid to you.

The reasons a person might not be able to support themselves include:

  • having the care and control of a child of the relationship who is not yet 18 years of age;
  • their age;
  • physical or mental incapacity for appropriate gainful employment;
  • any other adequate reason, having regard to any relevant matter referred to in subsection 75(2) of the Family Law Act 1975 (see the list of things considered in our fact sheet "Matters considered for Spousal Maintenance").

The Family Law Act 1975 says that a person has a responsibility to financially assist their former spouse, if they are not able to meet their own reasonable expenses from the income and assets they have themselves. The extent to which a person may be liable to support their former partner depends on what they can afford to pay.

Some of the most common situations when an order for spousal maintenance may be payable is when one spouse has an ability to pay some money to their former spouse and their former spouse is either unable to earn any income or is earning a limited income.

Examples of some of the more common situations that result in spousal maintenance orders being made include a spouse:

  • who has had to give up work to care for young children and either it is unreasonable to for them obtain work or they do not have necessary current skills enabling them to re-enter the workforce;
  • who is unable to work due to ill health or health issues or because they are suffering a mental or physical disability.

Spousal Maintenance:More you should know

There is a list of things the law says the court must look at when considering whether a person should be ordered to pay Spousal Maintenance to their former partner. You can read that list in our fact sheet List of matters considered for whether Spousal Maintenance is payable.

Our fact sheet Can I get paid Spousal Maintenance will also give you more information about when Spousal Maintenance is payable and give examples of common situations in which an order for Spousal Maintenance might be made.

You need to be eligible to apply for Spousal Maintenance. You can read more about eligibility to seek Spousal Maintenance in our fact sheet: Who can apply for Spousal Maintenance.

Read about How Spousal Maintenance is calculated in our separate fact sheet explaining that.

Our fact sheet Frequently answered questions about Spousal Maintenance has more information about:

  • Period Payments or Lump Sum Spousal Maintenance;
  • What if Financial Circumstances change
  • What if my former spouse fails to make payments;
  • When do periodic Spousal Maintenance payments end;

A strict time limit does apply within which you have to make your application for Spousal Maintenance.

If an order for payment of Spousal Maintenance has not previously been made, then there are time limits that apply as to how quickly after your separation or divorce you will need to make your Spousal Maintenance application. You can read more about this in our fact sheet, Is there a time limit to seek Spousal Maintenance.

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Content By:
Michelle Beatty
MRB LAW

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