• Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Phone: 3465 9332

Logo
  • Home
  • Our Team
    • Courtney Barton – Legal Practice Director & Founder
    • George Finn – Director
    • Chris Colwill – Senior Associate
    • Ellie Prior – Associate
    • Hannah Radunz – Solicitor
    • Tenayah Miano – Paralegal
    • Alice Chapman – Paralegal
    • Rachel Elaurant – Legal Assistant
  • Our Services
    • Divorce Property Settlement Lawyers
    • Family Law Spousal Maintenance
    • Superannuation Splitting & Advice Lawyers
    • Child Custody Lawyers Brisbane
    • Child Support Lawyers
    • Child Relocation Family Lawyers
    • Child Abduction Family Lawyers
    • Fixed Fee Consent Orders Brisbane
    • Binding Financial Agreements
    • Fixed Fee Divorce Lawyers
    • Domestic Violence Lawyer – DVO Domestic Violence Order
    • Family Court Process
    • Family Mediation Services Brisbane
  • Fixed Fees
  • Common questions
    • Spousal & Separation
      • Beware the criminal consequences of false allegations of sexual abuse
      • Initial Contributions Count – 8 years + 1 child = 78%/82% to Husband
      • Validity of Overseas Orders – Parenting, Marriage and Divorce Orders
      • Superannuation Splitting in Financial Agreements
      • Is my Binding Financial Agreement Binding?
      • Bodilly & Hand: Spousal Maintenance ordered 17 years after separation
      • Admissibility of admissions at mediation in court proceedings
      • Does your Financial Agreement Protect you from a maintenance claim?
      • The Alter Ego Principle – When a Spouse uses a trust to hide assets
      • Do I have to mediate before court? The exemptions Explained
      • Pet Custody – Who gets the dog in a divorce?
      • Top 10 Myths in family Law Finally Exposed
      • Honesty is the best policy – Why tell your divorce lawyer everything
      • My ex is selling assets. What can I do??
      • 6 secrets revealed to help you protect your assets and your family after separation. No. 1 and 2 will blow your mind.
      • Spousal Maintenance – Do I have to support my ex after divorce?
      • Who stays in the home after separation?
      • Can I go to court without doing mediation first?
      • Assessing initial contributions in a long relationship
      • What to do and what not to do before you separate
      • CGT rollover for marriage breakdowns – Ellison & Sandini Explained
      • Domestic Violence Order Applications – How to boost your chance of success
      • Going back to work after Divorce
      • Mediation
      • 10 tips to Protect your Assets
      • Am I in a De Facto Relationship?
      • Property Acquired after Separation – how is it treated?
      • Divorce – What you need to know
      • Petrie Family Law Expert speaks about ‘The Twelve year Itch’
    • Parent
      • Court Ordered Paternity Test – What, Why and How
      • NEWS ALERT – You do NOT need a s60I certificate to file your parenting application – Valack & Valack
      • What is sole parental responsibility?
      • How does a DVO affect parenting orders?
      • Do you want sole Custody? Here’s what NOT to do.
      • SHOCK: Drug use in Australia worse than ever. Drugs & family law explained
      • SHOCK: Drug use in Australia worse than ever. Drugs & family law explained
      • When is supervised time ordered? Is Narcissistic Abuse enough?
      • Interim Parenting Orders
      • What is substantial and significant time?
      • Am I a parent?
      • My ex is in contravention of a Parenting Order. What can I do?
      • My Parents lent me money. Is it treated as a gift or a loan?
      • Gay Couple Win Appeal on sperm donor ‘parent’
      • How to spend more time with your children
      • Parental Alienation in Family Court Disputes: Part 2
      • Im not a parent. Can I apply for a parenting order? Non-Parent Parenting orders explained.
      • Can Parenting Orders be changed?
      • Step-Parent Adoption Explained
    • Child
      • What age can a child decide where they live?
      • Finally revealed: Top 10 things people do wrong in child custody matters
      • Child Relocation Family Lawyers
      • I want sole custody of my child
      • Rights to return of your child if taken to a Non-Hague Convention country
      • How to deal with false allegations in family law
      • Unilateral relocation of children
      • Prevention is better than Cure – Interim Relocation of Children Cases
      • International Travel with Children After Separation
      • Airport Watch List Orders / Pace Alert Orders
      • Application to change parenting orders because of children’s changed views dismissed
      • When can you change your child’s surname?
      • Change in residence for children because of Mother’s inability to protect the children from harm
      • Courtney’s Cases: Interim Orders appealed as Judge avoids determining issues
      • Mother’s persistent accusation that the Father sexually abused their child results in orders for no time with the Mother
      • Relocation – Full Court confirms decision allowing ADF Mother a ‘blank cheque’ relocation to wherever posted in her employment
    • Property
      • Top 15 things people do wrong in a property dispute
      • Hiding assets in a divorce
      • Injunction to stop my ex selling assets
      • What is a Superannuation Payment Flag?
      • Difference between property and a financial resource in family law
      • Impact of overseas divorce on Australian property settlement
      • How Trusts are dealt with in a Property Settlement
      • Redundancy payment – how is it treated?
      • Future inheritances – when can they be taken into account?
      • Can the court order someone to leave a house? – Ouster Orders
      • Time Limits in Property Settlement
      • Beware: failure to disclose may derail your consent order
      • Duty of Disclosure
      • What is just and equitable?
      • Why you should formalise your property settlement
      • Is domestic violence relevant in a property settlement?
      • Varying property orders
      • Defaulting on Property Orders is Dangerous
      • Effect of Bankruptcy on property settlement
      • Courtney’s Cases: Centrelink fraud or a fraudulent representation to the Court?
      • Limitation periods against solicitors for defective Financial Agreements
      • Clayton & Bant – A multi-jurisdictional family law dispute
      • Dunworth & Faletti: Application for injunction to stop sale of property where jurisdiction not yet established
      • Court dismisses application for property settlement for same sex couple of 27 years
    • Child Support
      • I want to set aside a Binding Child Support Agreement
      • I want to challenge my child support assessment
    • Other Legal
      • Out With the Old, In With the New: Why Fixed Fees are better
      • NEWSFLASH – What are the New Family Law Rules?
      • Apprehended Bias – should Judges & lawyers have drinks pre-judgement?
      • Inquest of Jack & Jennifer Edwards – Lessons Learned
      • 6 things you MUST know before hiring a family lawyer
      • Admissibility of opinion evidence & expert evidence in family law matters
      • Admissibility of recordings in family law cases
      • COSTS ORDERS
      • WARNING PRACTITIONERS: New Family Law Rules from 1 March 2018
      • Review of the Family Law System
    • Covid-19
      • The Covid-19 Vaccination – Is mutual parental consent required?
      • I want to apply to the Family Court for inclusion in the Covid-19 List
  • Family Law Videos
  • Family Mediation
  • Contact Us
  • Success Stories
  • Narcissistic Abuse

Spousal Maintenance – Do I have to support my ex after divorce?

January 23, 2020 By Barton Family Law

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:

  1. Capacity – That one party is reasonably able to support the other party;
  2. 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

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:

  1. hardship would be caused to a party to the marriage/relationship is leave was not granted; or
  2. 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:

  1. Spousal Maintenance 
  2. Bodilly & Hand: Spousal Maintenance ordered 17 years after separation
  3. Going back to work after divorce 
  4. Why you should formalise your property settlement
  5. When can future inheritances be taken into account
  6. How do I apply for property and financial orders
  7. 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 on 3465 9332 for a reduced rate initial consultation to discuss your rights.

spousal maintenance

Filed Under: Commonly Asked Questions, Spousal/Separation

Barton Family Law

Primary Sidebar

Online Enquiry

.

    I would like to book a reduced rate initial consultation with you

    Footer

    Areas of Practice

    • Child Custody Lawyers Brisbane
    • Divorce Property Settlement Lawyers
    • Fixed Fee Divorce Lawyers
    • Domestic Violence Lawyer – DVO Domestic Violence Order
    • Superannuation Splitting & Advice Lawyers
    • Fixed Fee Consent Orders Brisbane
    • Mediation Representation
    • Child Relocation Family Lawyers
    • Child Abduction Family Lawyers
    • Child Support Lawyers
    • Family Law Spousal Maintenance
    • Family Court Process
    • Family Mediation Services Brisbane
    • Binding Financial Agreements

    What makes us different from other Law Firms?

    Our Brisbane Divorce & Family Lawyers:

    • Only do family law all day every day. That makes us really good at what we do;
    • Are dedicated to helping you work through your family law issues so you can have a fresh start;
    • Have your best interests at heart;
    • Have the knowledge and experience to solve your family law problems, no matter how complex;
    • Will help you to reduce the conflict with your former partner;
    • Will fight for you and your children;
    • Provide exceptional quality service to you, tailored to your individual case needs;
    • Will educate you about your options, the steps you need to take and we will develop a strategy to help you to achieve a fair outcome and the best practical outcome for you and your family;
    • Will provide you with practical, realistic, commercial and strategic advice to empower you to make smart decisions following separation that will save you time, money and stress;
    • Will deliver an outcome to you quickly and cost effectively, with fixed fees for certainty;
    • Will do everything within our legal power to get you the best outcome for you and your family;
    • Are with you, supporting you, every step of the way from negotiations, to mediation, to litigation and settlement.
    Individual liability limited by a scheme approved under professional standards legislation.

    Contact Us

    Petrie Office

    • Address: 4/996 Anzac Avenue, Petrie QLD 4501
    • Parking: Underground parking available at the back of the building via O’Loan Street
    • Phone: 3465 9332
    • Email: [email protected]
    • Website: Petrie Family Lawyers

    Chermside Office

    • Address: 822 Gympie Road, Chermside QLD 4032
    • Phone: 3465 9332
    • Email: [email protected]
    • Website: Chermside Family Lawyers

    Aspley Office

    • Address: Aspley Hypermarket, 59 Albany Creek Road, Aspley QLD 4034
    • Phone: 3465 9332
    • Email: [email protected]
    • Website: Aspley Family Lawyers

    Copyright © 2022 | Website hosted by Lift Legal Marketing