Spousal Maintenance: Matters considered by Courts

Main things Courts want to know re Spousal Maintenance Payment Orders

There is a specific list of things a Court must look at when deciding whether you might be liable to pay Spousal Maintenance to your former partner / husband / wife, or receive Spousal Maintenance from your former spouse / husband / wife.

Some of the more obvious things a Court will look at when considering a Spousal Maintenance application include the following things about each of you:

  • your age;
  • your health, any illness or disability;
  • your ability to work;
  • if their are children, the level of care and supervision they need;
  • a suitable standard of living;
  • whether the relationship has affected your ability to earn an income.

That more detailed list is itemised in section 75(2) of the Family Law Act 1975, which says that the following matters are to be considered and taken into account:

 



 

  • the age and state of health of each of the spouses.
  • the income, property and financial resources of each of the spouses and the physical and mental capacity of each of them for appropriate gainful employment.
  • whether either spouse has the care or control of a child of the relationship who is not yet 18 years of age.
  • commitments of each of the spouses that are necessary to enable them to support themselves or another person that they have a duty to maintain.
  • the responsibilities of either spouse to support any other person.
  • the eligibility of either spouse for a pension.
  • a standard of living, reasonable in the circumstances.
  • the extent to which the payment of maintenance to the spouse, would increase their earning capacity, by enabling them to undertake a course of education or training, or to establish themselves in a business or otherwise to obtain an adequate income.
  • the effect of any proposed court order on the ability of a creditor of a spouse to recover the creditor’s debt, so far as that is relevant.
  • the extent to which the spouse applying to have maintenance paid to them has contributed to the income, earning capacity, property and financial resources of the other spouse.
  • the duration of the marriage and the extent to which it has affected the earning capacity of the spouse applying to have maintenance paid to them.
  • the need to protect a spouse who wishes to continue their role as a parent.
  • If either spouse is cohabiting with another person—the financial circumstances relating to the cohabitation.
  • the terms of any court order made (or proposed to be made) under section 79 in relation to the property of the spouses or vested bankruptcy property in relation to a bankrupt spouse;
  • any child support assessed as being payable or which might be assessed as being payable in the future.
  • any fact or circumstance which the justice of the case requires to be taken into account.
  • the terms of any financial agreement that is binding on the spouses.

Other information on Spousal Maintenance

You might need to know various payment questions and issues such as how Spousal Maintenance might be able to be paid, what happens if financial circumstances change.

Read more to find out the circumstances when Spousal Maintenance might  be paid. You can also read more about whether you are eligibile to seek Spousal Maintenance in our information sheet: Who can apply for Spousal Maintenance.

Our information sheet explaining how payment of Spousal Maintenance is calculated will also give you valuable information you need.

A strict maximum time limit does apply as to when you can 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 an application for Spousal Maintenance. You can read more about this in our information sheet, What is the time limit to apply for Spousal Maintenance.

 

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