What is Spousal Maintenance?
Spousal Maintenance is financial support paid by one party to a marriage/de facto relationship to their former partner/spouse in circumstances where they are unable to adequately support themselves.
Under the Family Law Act 1975, a person has a responsibility to financially assist their former spouse/ de facto partner if that person is not able to meet their own reasonable living expenses from their own income or assets.
Generally speaking, for a person to have an entitlement to spousal maintenance, there needs to be a significant disparity in the respective party’s income at the date of separation.
What does a court consider when making a decision?
The necessary elements that must be proved for a person to have a right to the payment of spousal maintenance, under s72, are:
- 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 by reason of:
- having care/control of a child of the relationship/marriage under 18;
- physical or mental incapacity to be employed;
- any other reason.
In the exercise of discretion by a court to make an order for the payment of spousal maintenance, the court may have regard, per s75(2) of the Family Law Act, to the following kinds of factors about both of you:
- your age and health;
- your income, property and financial resources;
- your ability to work;
- what is a suitable standard of living; and
- if the marriage/relationship has affected your 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: section 74 Family Law Act 1975.
In determining the amount of spousal maintenance to be paid, reasonableness is always the guiding principle.
Is there a time limit for applications for spousal maintenance?
If you were married, you must make a spousal maintenance application within 12 months of the divorce becoming final.
If you were in a de facto relationship, you must make a spousal maintenance application within 2 years of the breakdown of the relationship.
However, these time limits do not apply in circumstances where a party is seeking the ‘revival’ of a previous spousal maintenance order that was made. This means that if a spousal maintenance order is made during proceedings, a party may pursue a further spousal maintenance order even after the time limitation lapses.
Furthermore, section 44 of the Family Law Act, which provides that an application for spousal maintenance/property settlement must be made within 12 months of the date of the divorce) will not of itself prevent a person from pursuing a spousal maintenance claim after the time limitation has lapsed, if at the end of the time limitation period, that person was unable to support him/herself without an income tested pension/allowance/benefit: s44(6) Family Law Act.
The case of Blevins highlights the possibility of one party being required to pay ongoing spousal maintenance for years, even after final property settlement.
Case Study: Blevins
In the recent case of Blevins & Blevins [2019] FCCA 1923, the Wife was able to bring an application for spousal maintenance 23 years after separation and in circumstances where final orders were made in 2009.
THE FACTS
The parties married in 1970, separated in January 1996 and divorced in 1998.
In 1999, the Court made Orders finalising the parties’ property matters. Those orders provided for the Husband to pay to the Wife spousal maintenance of $750 per month for the next 10 years until 8 July 2009. The Orders also provided that after 8 July 2009 “the wife shall be at liberty to seek the payment of further spousal maintenance…”
The Husband complied and made spousal maintenance payments as directed by the Court.
In 2009, the Wife deposed that she “was unable to support herself without continued spouse maintenance.” A further Order was made by the Court for the Husband to pay the Wife a lump sum of $275,000 which the Husband did. There was also a notation to the Orders which said “these orders pursuant to section 81 of the Family Law Act 1975 (as amended) shall finally determine any obligation by the former husband to provide spouse maintenance to the former wife.”
At the time these orders were made, the Wife was entirely reliant on a disability support pension.
In 2017, the assets test for the aged pension was changed and the Wife lost her ability to claim an aged pension meaning she was entirely reliant on her savings and superannuation which was insufficient to meet her reasonable needs.
Accordingly, March 2019, the Wife filed an initiating application seeking that the Husband pay her the sum of $400 per week by way of spousal maintenance.
In response, the Husband said he would be significantly prejudiced if the Wife were allowed to make the application given:
- He had remarried and the potential claim for spousal maintenance was causing significant emotional distress to him and his current wife.
- He was now aged 71 and his former wife aged 69.
- Property proceedings had already been finalised and his former wife had received significant sums from him by way of spousal maintenance already.
Despite the Husband’s argument, Judge Baker found that the Husband may be required to pay spousal maintenance if he had the ability to pay and the Wife could demonstrate a need, and that these matters would be decided at trial.
THE LAW – Do I Have to Support My Ex After Divorce?
Spousal maintenance is generally ordered to adjust for any disparity between the incomes / earning capacities of the parties. It is usually paid for a relatively short period after separation in which time the person in receipt of the spousal maintenance has the opportunity to retrain, re-enter the workforce or re-establish themselves.
This follows the ‘clean break’ principle set out in section 81 of the Family Law Act 1975 which provides that ‘as far as practicable, [the Court] make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.’
However, section 81 of the Family Law Act 1975 is not a barrier to a party making an application for spouse maintenance, even some 20 years after separation, if the applicant can satisfy the requirements for the making of such an order. Additionally, Section 44 of the FLA will not, of itself, prevent an applicant from pursuing a spouse maintenance claim out of time (12 months after a Divorce Order has been made)
Furthermore, section 83 of the Family Law Act, allows the Court to revive or vary a spousal maintenance application. In this case, section 81 was not a barrier to a party making an application for spousal maintenance even some 20 years after separation as the Wife could satisfy the requirements of making such an order.
Furthermore, section 44 of the Family Law Act, which provides that an application for spousal maintenance/property settlement must be made within 12 months of the date of the divorce) did not prevent the Wife from pursuing a spousal maintenance claim after the time limitation lapsed.
In this case, the Wife’s application was considered a new application (not a variation or renewal) and so section 83 did not apply, however, the Wife was granted leave under s44(4) to institute proceedings out of time. Leave can be granted to institute proceedings out of time if at the court is satisfied that:
- hardship would be caused to a party to the marriage/relationship is leave was not granted; or
- If at the end of the time limitation period, that applicant was unable to support him/herself without an income tested pension/allowance/benefit: s44(4) and (6) Family Law Act.
How do I obtain spousal maintenance?
If you are unable to support yourself adequately from your own income and financial resources, we suggest that you make a proposal to the other party regarding the payment of spousal maintenance to you to help you cover your living expenses for the time being, until more final arrangements are made regarding the division of your assets. Alternatively, if an agreement cannot be reached, you may need to file an application to the Court to obtain spousal maintenance payments from the other party.
More Information
For more information in relation to similar topics, see our article:
- Spousal Maintenance Lawyers
- Bodilly & Hand: Spousal Maintenance ordered 17 years after separation
- Going back to work after divorce
- Why you should formalise your property settlement
- When can future inheritances be taken into account
- How do I apply for property and financial orders
- Am I in a de facto relationship
Contact Us
Have you recently separated and are you concerned about the payment/receipt of spousal maintenance? Contact us if you have any questions like do I have to support my ex after divorce? Call us on 3465 9332 for a reduced rate initial consultation to discuss your rights. We are the family lawyers Brisbane depends on, and we’re here to help you.
Updated 13/01/2023
