Frequently Asked Questions (FAQ’s)
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 spouse/former 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.
Many people do not realise that they may have an entitlement to / obligation to pay spousal maintenance.
What is the difference between spousal maintenance and child support?
Spousal maintenance is paid for the support of your former spouse/partner.
Spousal maintenance is not child support as child support is paid for the support of your children.
The Family Law Courts can order that you receive spousal maintenance in addition to any child support you are entitled to receive.
What is the difference between spousal maintenance / spousal support and property settlement?
A property settlement relates to the division of assets of the parties following separation.
This is different from spousal maintenance, which is paid for the support of your former partner.
What does a Court consider when deciding whether spousal maintenance is payable?
The necessary elements for a court to order the payment of spousal maintenance 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 determining a spousal maintenance application, the Court has regard to the following 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.
Am I entitled to spousal maintenance?
If you are unable to work, due to illness, having care of young children, and/or have been out of the workforce for a significant period of time such that your capacity for employment is limited, you may be entitled to spousal maintenance if you are unable to financially support yourself adequately from your own income and resources, and the other party has a much greater income than you, and is therefore able to assist in your financial support.
If you are working but your income is not sufficient to meet your living expenses, you may still be entitled to spousal maintenance, pending of course the other party’s capacity to assist in your financial support.
Your need for financial support and the other party’s capacity to provide it will be determined by both parties filing and exchanging a financial statement which sets out your income and living expenses.
If the court determines that a spousal maintenance payment is necessary having regard to the financial need of one party and the financial capacity of the other party, the Court must then determine what payment it thinks is reasonable.
There is no formula for determining how much spousal maintenance is reasonable for you to be paid. It will depend on the individual circumstances of your case. Your need for financial support and the other party’s capacity to provide you with support will be assessed having regard to the reasonableness of each of your day to day living expenses. If your day to day living expenses are reasonable and your need for financial support is significant, the court can only make an order that the other party pay you a sum which is reasonable, having regard to their financial capacity to do so. The other party is entitled to apply funds to meet their own day to day living expenses first, before assessing their capacity to meet your financial needs.
In determining the amount of spousal maintenance the Court will give consideration to a standard of living that is reasonable in all the circumstances. Here, reasonable does not necessarily mean the standard of living that the applicant led prior to the breakdown of the relationship, as that can no longer be reasonable noting the parties now live in two separate households and their assets have been divided, however this is a consideration of the Court.
We recommend speaking to one of our Brisbane Family Lawyers as soon as possible after separation, about your right to receive spousal maintenance from your former partner and the amount you might be entitled to receive.
How can I calculate spousal maintenance I may entitled to receive / required to pay?
As stated above, there is no formula for determining how much spousal maintenance is reasonable for you to pay/be paid. It will depend on the individual circumstances of your case.
However, you can do a rough calculation of spousal maintenance payable/receivable, on a weekly basis, by doing the following steps:
- Work out your gross weekly income (check your pay slip) (where you are paid monthly/fortnightly, divide by the appropriate figure to get a weekly amount);
- Work out your income tax paid every week (check your pay slip);
- work out your child support payable (if any);
- Add up your reasonable living expenses (where they are yearly expenses/quarterly expenses, divide by the appropriate figure to get a weekly amount);
- Prepare an excel spreadsheet showing your income and expenses that you incur, as a weekly figure;
- Do the same for the other party;
- Consult with an experienced Brisbane Family Lawyer with the above information to determine the spousal maintenance you may be entitled to receive/required to pay.
Do I have to pay spousal maintenance?
If the other party is not able to support themselves adequately from their own income/resources and you have the capacity to support them after payment of your own reasonable living expenses, then you have a legal obligation to pay spousal maintenance to your former partner.
If you and your former partner cannot reach an agreement as to the payment of / amount of spousal maintenance to be paid to them, they may file an application to the Court seeking orders for you to pay spousal maintenance to them.
If you are worried about whether your former partner may have a claim against you for the payment of spousal maintenance, we recommend speaking to one of our Brisbane Family Lawyers at an early stage about your spousal maintenance obligations and the amount you may be required to pay.
Generally, negotiations between lawyers at an early stage have high prospects of success in resolving issues relating to spousal maintenance.
If you are worried about whether your former partner may have a claim against you for the payment of spousal maintenance, it may be a good idea for you to keep the joint bank account open and joint credit cards available for them to use for their living expenses, until the parties reach an interim agreement in relation to spousal maintenance issues.
How long are spousal maintenance payments?
Spousal maintenance payments are not long term. They are intended for a discrete period of time following separation to enable the applicant to get back on their feet. Sometimes they will extend for longer periods of time to enable the applicant to retrain so they may obtain employment to enable them to financially support themselves. Usually, spousal maintenance payments will end once a property settlement is agreed upon between the parties or decided by the court. In certain limited circumstances, it is appropriate that spousal maintenance payments continue for a longer period of time, following a final property settlement order.
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.
Do I have to pay spousal maintenance after our property settlement is finalised?
The obligation to pay spousal maintenance does not expire after you do a formal ‘property settlement’.
Whether a party is entitled to spousal maintenance after a property settlement is completed, depends on all the circumstances of the case, most relevantly whether the applying party still has a need for support.
We recommend you obtain advice from one of our Brisbane Family Lawyers about whether you may be obligated to pay ongoing spousal support after your property settlement is finalised.
Pending the circumstances of your case, there may be a way of protecting you from a claim against spousal maintenance after formalisation of your property settlement.
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.
For more information in relation to similar topics, see our article:
- Does your financial agreement protect you from a maintenance claim?
- Hiding Assets in a 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
- Spousal Maintenance ordered 17 years after separation
- Going back to work after divorce
- When can future inheritances be taken into account
- How do I apply for property and financial orders
- Am I in a de facto relationship
If you think you may be entitled to spousal maintenance or you may be at risk of a spousal maintenance claim, you should seek legal advice from an experienced family lawyer as soon as possible.
Barton Family Lawyers are experienced in applying for and responding to these types of claims. Get in contact with us to book a reduced rate initial consultation to discuss your rights and obligations further.