Introduction.
When a marriage or de facto relationship ends, the emotional and financial consequences can be overwhelming. One of the most challenging aspects for many separating couples is how they will support themselves moving forward. While property settlements aim to divide assets, some individuals find themselves in immediate financial hardship post-separation. In these situations, the Australian legal system offers a vital form of support known as spousal maintenance.
Spousal maintenance is not automatic, and not everyone will qualify. It is also distinct from property division and child support. The complexity of determining eligibility, the application process, and the court’s considerations can leave many people uncertain about their financial rights and obligations after a relationship ends.
This article explores the framework of spousal maintenance in Australia, explaining eligibility requirements, how to apply, and how courts assess claims. It also examines key legal provisions, relevant cases, and practical factors anyone navigating this issue should understand.
If you’re unsure about your entitlement to spousal maintenance or how to begin the process, consultWollongong Family Lawyers for advice tailored to your circumstances and financial needs.
Understanding Spousal Maintenance.
Spousal maintenance refers to financial support paid by one party to their former spouse or de facto partner after separation or divorce. It is governed primarily by the Family Law Act 1975 (Cth). Sections 72 and 90SF (for de facto couples) outline the right to maintenance, stating that a party is liable to maintain the other “to the extent that they are reasonably able to do so” if the other party is unable to support themselves “adequately.”
The principle underpinning spousal maintenance is fairness. Australian family law recognises that in many relationships, one party may have been financially dependent on the other, perhaps due to child-rearing responsibilities, illness, or career sacrifices. When the relationship ends, that financial dependency does not simply disappear overnight.
A critical distinction must be made between spousal maintenance and property settlement. Property settlement is about dividing existing assets and liabilities between parties, while spousal maintenance is about providing ongoing financial support when one party cannot meet their reasonable living expenses.
Who Is Eligible for Spousal Maintenance?
Eligibility is not automatic. Courts consider two main questions:
- Does the applicant have a genuine need for financial support?
- Does the other party have the capacity to pay?
Section 72 of the Family Law Act highlights three key situations that often give rise to spousal maintenance claims:
- The applicant has the care of a child of the marriage under 18 years.
- The applicant is unable to work due to age or physical/mental incapacity.
- Any other adequate reason why the applicant cannot support themselves.
Importantly, even if one of these situations applies, the court will still examine whether the paying party can afford to contribute without causing undue hardship.
The case of Bevan & Bevan [2013] FamCAFC 116 is a leading authority that reinforces the principle that spousal maintenance is not intended to equalise incomes, but rather to prevent financial distress. The court must balance the reasonable needs of the applicant with the financial capacity of the respondent.
Factors the Court Considers.
Under Section 75(2) of the Family Law Act, the court assesses a long list of factors to determine whether to order spousal maintenance, including:
- The age and health of both parties.
- The income, property, and financial resources of each party.
- The ability of each party to obtain employment.
- Whether either party has care of a child under 18.
- The commitments of each party that affect their ability to support themselves and others.
- The eligibility of either party for a pension or other government support.
In Steinbrenner v Steinbrenner [2008] FamCA 108, the court highlighted that the assessment of “reasonable needs” does not entitle the applicant to maintain the exact same standard of living as during the marriage but does require that they have the means for a reasonable quality of life.
Types of Spousal Maintenance.
There are two main forms of spousal maintenance in Australia:
Urgent Spousal Maintenance – This is for situations where the applicant is in immediate financial distress and needs emergency support. The court can make an interim order quickly, often on an urgent basis, to prevent serious hardship.
Interim and Final Spousal Maintenance – Interim maintenance is ordered for a limited period, often while other family law matters (like property settlement) are being resolved. Final maintenance may be ordered as a lump sum or ongoing periodic payments for a defined period, or in rare cases, indefinitely.
How to Apply for Spousal Maintenance.
An application for spousal maintenance is made in the Federal Circuit and Family Court of Australia (FCFCOA).
Time limits are crucial. For married couples, applications must generally be made within 12 months of divorce. For de facto couples, the limit is two years from separation. After this period, leave of the court is required, which can be difficult to obtain.
The application must include:
- An affidavit setting out the applicant’s financial needs and inability to meet them.
- A financial statement detailing income, assets, and expenses.
- Supporting evidence, such as medical reports, if illness is claimed.
The respondent can file their own financial statement and affidavit showing why they cannot or should not pay maintenance.
Courts will typically attempt to resolve spousal maintenance claims through negotiation or mediation before proceeding to a hearing.
Duration of Spousal Maintenance.
Spousal maintenance is rarely indefinite. Courts usually set a timeframe for payments, expecting the recipient to take steps to become self-sufficient where possible.
For example, if the applicant needs retraining to re-enter the workforce, the court might order maintenance for a few years to cover living costs while they complete studies. However, in cases involving chronic illness or disability, maintenance might be ordered for a much longer period.
In Eliades v Eliades [1981] FamCA 48, the court acknowledged that while self-sufficiency is encouraged, the reality of certain circumstances means that some recipients will remain dependent indefinitely.
Spousal Maintenance and De Facto Relationships.
Since reforms to the Family Law Act in 2009, de facto partners – including same-sex couples – have similar rights to spousal maintenance as married couples, provided they meet certain criteria.
A de facto relationship is recognised if the couple lived together on a genuine domestic basis for at least two years, or for a shorter period if there is a child of the relationship or one party made significant contributions to the relationship.
Sections 90SB and 90SF of the Family Law Act govern spousal maintenance for de facto partners.
Common Misconceptions about Spousal Maintenance.
One of the biggest misconceptions is that spousal maintenance is automatic after separation or divorce. It is not. Courts will only order maintenance where there is clear evidence of need and capacity to pay.
Another misconception is that maintenance is a “punishment” for the higher-earning spouse. In reality, Australian family law is not fault-based; maintenance is about fairness, not retribution.
It’s also important to understand that remarriage will generally terminate the right to spousal maintenance. Entering into a new de facto relationship can also affect entitlements, depending on financial circumstances.
Important Case Law in Australian Family Law.
These case laws provide valuable insights into how courts approach spousal maintenance.
In Hall v Hall [2016] HCA 23, the High Court clarified the scope of interim spousal maintenance, stating that courts must consider not only the applicant’s immediate needs but also the respondent’s ability to pay without significant financial strain.
In the Marriage of Bevan [1995] FamCA 85, the court reinforced that maintenance is not intended to create financial equality between parties, but rather to ensure that the applicant does not suffer undue hardship.
These and other cases illustrate that spousal maintenance is a discretionary remedy, not a guaranteed outcome.
Practical Tips for Navigating Spousal Maintenance.
For those seeking maintenance, it’s essential to gather evidence early. This might include medical reports, childcare obligations, or proof of job-seeking efforts. Applicants should also prepare a realistic budget showing their living expenses.
For those facing a claim for maintenance, it’s crucial to document your own financial commitments and capacity to pay. Courts will not look kindly on attempts to conceal income or assets.
Many individuals turn toLawyers for guidance during this process, as spousal maintenance applications can quickly become complex when combined with property settlements, child support issues, and competing financial demands.
The Role of Negotiation and Mediation.
Not all spousal maintenance claims end up in court. In many cases, parties reach agreements through negotiation or mediation, often with legal assistance. This can save time, costs, and emotional stress.
An agreement can be formalised through a Binding Financial Agreement or a Consent Order, making it legally enforceable.
Experienced Lawyers often recommend exploring these out-of-court options before proceeding to litigation, as they can result in more tailored and flexible arrangements.
How Courts Enforce Spousal Maintenance Orders.
If a party fails to comply with a maintenance order, enforcement proceedings can be initiated.
The court has several tools, including:
- Garnishing wages or bank accounts.
- Seizing property.
- In serious cases, imposing fines or even imprisonment for contempt of court.
The case of Carpenter & Carpenter [2012] FamCA 334 demonstrated the court’s willingness to enforce maintenance orders strictly, reinforcing that they are not optional.
Balancing Financial Realities.
Spousal maintenance cases often involve difficult conversations about money, responsibility, and fairness. Courts aim to balance the genuine needs of one party with the financial capacity of the other.
The law also recognises that maintenance should not discourage recipients from becoming self-sufficient where possible. Support is often transitional, a financial bridge, rather than a permanent lifeline.
For both applicants and respondents, understanding the legal framework and preparing properly is essential. Engaging professionals can ensure that your rights are protected and obligations are clear throughout the process.
FAQ: Spousal Maintenance in Australia.
Is spousal maintenance the same as child support?
No. Spousal maintenance is financial support for a former spouse or partner, while child support is for the children of the relationship. Both can be ordered separately.
How long does spousal maintenance last?
It depends on the circumstances. Courts often set a timeframe, for example, a few years to allow retraining or study. In rare cases involving disability or chronic illness, maintenance might continue indefinitely.
What happens if my ex-partner refuses to pay?
If they ignore a spousal maintenance order, you can seek enforcement through the court. This might involve garnishing wages, seizing property, or, in extreme cases, contempt proceedings.
Does spousal maintenance stop if I remarry?
Yes, remarriage generally ends entitlement to spousal maintenance. Entering into a new de facto relationship can also affect your eligibility.
Do de facto couples qualify for spousal maintenance?
Yes, since 2009, de facto couples – including same-sex couples – have similar rights to married couples if they meet the criteria under the Family Law Act 1975.
Conclusion.
Spousal maintenance can be a lifeline for those struggling financially after separation, but it is not automatic, and every case turns on its own facts. The law balances need and capacity, and the court considers a wide range of personal and financial circumstances before making an order.
If you are facing a separation or divorce and are uncertain about your financial future, it’s important to understand your legal rights and obligations under the Family Law Act 1975. Whether you may be entitled to receive support or could be required to pay it, seeking clear legal advice early can help you navigate this complex area of law with confidence and clarity.
For personalised guidance on spousal maintenance, consult Wollongong Family Lawyers to understand your options and protect your financial well-being.
