If you can’t meet your reasonable living expenses after separation and your former spouse or de facto partner can afford to help, you could be entitled to spousal maintenance.
Equally, if you’ve been asked to pay, you have rights and the amount and duration depend on both parties’ circumstances, not a fixed formula.
Below, we set out how spousal maintenance works, who can apply, and how we can help.
Spousal maintenance is financial support paid by one party to a marriage, or one party to a de facto relationship, to their former partner where that partner can’t adequately support themselves. The Family Law Act 1975 places a duty on both married and de facto partners to help support each other after separation in circumstances where one person is in genuine need and the other has the capacity to help.
It is usually a short-to-medium-term arrangement intended to help a person adequately support themselves. It is not designed to equalise incomes or guarantee the lifestyle you had during the relationship, although that standard of living can be one factor the Court considers.
Child support is paid for the benefit of a child; spousal maintenance is paid to support a former partner. While the two can run alongside each other, they are assessed separately and according to different criteria.
To succeed in a spousal maintenance claim, you first need to show that you can’t adequately support yourself from your own income and assets, for one of the following reasons:
You will also need to show your former partner has the capacity to pay spousal maintenance to you, while still needing to meet their own reasonable needs and still afford to contribute to yours.
In determining an application for spousal maintenance both parties will be required to provide full and frank disclosure of their income, expenses, assets and liabilities.
If you were in a de facto relationship and never married, you can apply for spousal maintenance if any of the following apply:
You only need to meet one of these, they are alternative pathways, not cumulative requirements. If you’re unsure whether your relationship qualifies, we can assess this with you.
There is no fixed formula or calculator for spousal maintenance. Every case is decided on its own facts. The Court looks first at what amount the person who is seeking maintenance, actually needs to meet their reasonable living expenses, and then at what the other person can genuinely afford, before deciding whether an order is appropriate and, if so, how much.
In reaching that decision, the Court will take into account:
Spousal maintenance can be paid periodically (for example, weekly or monthly) or as a lump sum, or a combination of both. Each option has different practical and tax consequences, so it’s worth getting advice on which structure suits your circumstances before an agreement or order is finalised.
If you were married, you must apply to the Court for spousal maintenance within 12 months of your divorce being granted. If you were in a de facto relationship, you must apply within 2 years from the date of separation.
If you’ve missed the deadline, you may still be able to apply but usually only with the Court’s permission (“leave”). The Court will only grant leave if it’s satisfied that:
If you need financial help urgently and there isn’t time to work out exactly what a final order should look like, the Court can make an urgent maintenance order for whatever periodic amount it considers reasonable in the circumstances, pending a full hearing.
At Empower Family Law & Mediation, we regularly act for both applicants and respondents in spousal maintenance matters. We can help you:
If you need financial support from a former partner, or you’ve received a request or an application for spousal maintenance, please contact us on (03) 7020 6542.
