Blog Post

Spousal maintenance is financial support paid by a party to a former partner or a wife in circumstances where the former spouse is not able to adequately support themselves financially.

Both married couples or a couple in a De facto relationship can apply Spousal maintenance after the relationship has broken down.

According to Family Law Act 1975, a person is responsible for financially assisting their spouse or former partner, if the person cannot meet their reasonable living expenses. Spousal maintenance is the recognition in a marriage or de facto relationship of the mutual obligations of both parties to maintain each other. It is completely different and separated from child support.

In the event the need exists, both parties have obligations to support and maintain each other as far as they can and need. This obligation can continue even after separation. However, you are not entitled to Spousal maintenance if you marry another person unless the Court otherwise orders. (section 82 and s90SJ of Family Law Act 1975)

The amount and duration for paying Spousal maintenance are varied and assessed on a case-by-case basis.  It can be paid on an ongoing basis while the divorce and property settlement finalized, or it can be paid in one lump sum at the end of a property settlement.

Parties do not have to go to court to resolve an issue about Spousal maintenance. Parties can have a binding financial agreement and consent orders.

Court’s consideration

The Court considers a few elements about both of you, as below:

1. Age and health;
2. Income, property and financial resources;
3. Earning capacity;
4. A suitable standard of living;
5. If the marriage has affected your ability to earn an income.

Most importantly, the Court considers who is taking care of the children who are under 18 years of age or any disabled adult children.

When to Apply

You can ask the Court to make an order for Spousal maintenance even if you are not divorced, as Divorce is a completely separate process from financial proceedings. Although it is uncommon, you can ask the Court to make a Spousal maintenance order even if you are not separated.

If you are divorced, you must apply for spousal maintenance within 12 months of the divorce order taking effect. You must ask the Family Court for leave if you apply out of time.

If you are in a de facto relationship, you must apply for Spousal maintenance within 2 years of the breakdown of the relationship. You must ask the Court for leave if you apply out of time.

Urgent Spousal maintenance

You can apply for urgent Spousal maintenance according to the s77 and s90SG Family Law Act.

Court Orders

The Family Court has the power to make the following orders:

1. the payment of a lump sum;
2. periodic payment;
3. transfer of property;
4. impose reasonable terms and conditions;
5. any other order that it thinks is necessary to make to do justice in the case.

Compliance & Enforcement

When the Family Court made a financial order, each party affected by the order must follow the order. The party must take all reasonable steps to follow the order. If the party does not comply with the order, you have to ask the Court to enforce a financial order.

The Court can make those enforcement orders as below:

1. An order for seizure and sale of property; (Family Law Rules 2021 Division 11.1.3)
2. An order for the attachments of earnings and debts; the third party, eg bank or employer of the payer to pay you. (Family Law Rules 2021 Division 11.1.4)
3. An order for sequestration of property; a sequestrator can collect rents, takings or profits of a business or prevent persons from entering the property. (Family Law Rules 2021 Division 11.1.5)
4. An order appointing a receiver. The Court can appoint a person as a receiver of the payer’s income or property, and pay amounts owing to you under the order. (Family Law Rules 2021 Division 11.1.6)

Before you apply for the enforcement orders, you may want to obtain information about the payer’s financial circumstances, that information could assist you in deciding how to seek the Court’s help to enforce financial orders.

You can require the payer to provide financial disclosure by the followings:

1. Sending the payer written notice to provide a financial statement within 14 days;
2. Applying to the Court for an order requiring the payer to provide a financial statement within 14 days, or the payer’s financial disclosure information.

Speak to CFS Legal dedicated family lawyers in confidence for your Family Law matter. Email: info@cfslegal.com.au