Learn about spousal maintenance including what it is, what the court considers in a spousal maintenance application and calculating spousal maintenance payments.
What is spousal maintenance?
Spousal maintenance is a payment made from one party to their former spouse/de facto partner in circumstances where that party is unable to meet their living expenses from their own income or assets.
Under the Family Law Act 1975, a person has a responsibility post separation, to financially assist their former partner, if that person is not able to meet their own reasonable living expenses from their own income or assets.
There are a number of factors that are considered when determining how much maintenance should be paid. There is no set amount that one party must pay to their former partner.
What does a court consider when making a decision about spousal maintenance?
The following elements must be satisfied for a party to have a right to the payment of spousal maintenance from their former spouse/partner:
- Capacity – That one party is reasonably able to support the other party;
- Need – the other party is unable to support themselves adequately from his/her own income earning capacity or financial resources because that party has care of children, an inability to work, or for any other reason.
Factors that the Court may consider when determining whether the applicant has a need for spousal maintenance are, the applicant’s:
- age and health;
- income, property and financial resources;
- ability to work;
- living arrangements of the children;
- what is a suitable standard of living; and
- if the marriage/relationship has affected their ability to earn an income.
Upon the Court being satisfied that a person is unable to support themselves adequately from their own income and resources, and that the other party has the capacity to support the first person, the Court can make such orders in relation to the payment of spousal maintenance as it considers proper.
Reasonableness is always the guiding principle when the Court is calculating spousal maintenance payments.
Calculating Spousal Maintenance
In determining the amount of spousal maintenance that is to be paid to the person who is unable to support themselves, the Court will look at their financial statement, which will show their income and expenses, in order to determine their spousal maintenance need.
The ‘need’ of the person applying for spousal maintenance is determined as follows:
Need = gross income – expenses
Importantly, an income tested benefit such as centrelink, is irrelevant for the purposes of determining a spousal maintenance claim. The reason for this is that a person has a primary responsibility post separation, to financially assist their former spouse/ de facto partner, if that person is not able support themselves. The purpose of centrelink is not to override that primary responsibility.
Sometimes, the Court will make orders for the payment of lump sum spousal maintenance. This may occur where there is an asset that may be sold/drawn upon (e.g. mortgage for the purpose of supporting a party who is unable to support themselves. Lump sum spousal maintenance orders are commonly made where a party’s is asset rich but income poor, or otherwise, where there is a concern about compliance with an order of the court for the payment of periodic maintenance by one party to the other.
How do I sort out spousal maintenance with my ex?
If you are unable to support yourself adequately from your own income and financial resources, or you are the person with capacity to support the other party in circumstances where they are unable to do so, we suggest that you make a proposal to the other party regarding the payment of spousal maintenance, until more final arrangements are made regarding the division of your assets.
Importantly, spousal maintenance is not limited to the payment of money by one party to the other. Spousal maintenance could be by way of mortgage repayments, rental payments, loan repayments or payment of other living expenses of the person who is unable to support themselves without assistance.
This will avoid the necessity of a court application being filed and maximise the prospects of a resolution of all issues quickly and cost effectively.
For more information in relation to similar topics, check out the following:
- Spousal Maintenance
- Do I have to support my ex after Divorce?
- Does your financial agreement protect you from a maintenance claim?
- Financial Agreements, Spousal Maintenance, income tested benefits
- Spousal Maintenance ordered 17 years after separation
- Hiding assets in divorce
- Going back to work after divorce
- Why you should formalise your property settlement
- How do I apply for property and financial orders
Calculating spousal maintenance can be stressful and confusing.
Our Brisbane Family Lawyers are very experienced in dealing with complex spousal maintenance matters. Let us help you with calculating spousal maintenance that you are required to pay/entitled to receive.
Contact us to book in a reduced rate initial consultation with one of our experienced Spousal Maintenance Lawyers if you would like to discuss your right/obligation to receive/pay spousal maintenance and we will develop a strategic plan to achieve the outcome you desire.