Spousal Maintenance

Spousal Maintenance

Often one of the concerns a spouse or a partner to a de facto relationship will have when their relationship breaks down is how they will continue to support themselves financially following separation. This is particularly so where one party from the relationship has been the stay at home parent or the homemaker, and as such may not have been in the workforce for a long time. This concern can, in certain circumstances, be overcome by applying to the Court to have the other party from the relationship ‘maintain’ them, i.e. pay them spousal maintenance.

Who can apply for spousal maintenance?

In the absence of an agreement between the parties of a relationship for one of them to financially support the other, it may be possible to apply to the Court for an order for spousal maintenance.

The Family Law Act 1975 (Cth) prescribes the circumstances when an order for spousal maintenance can be made. This is often referred to as the ‘threshold test’.

In order to meet the ‘threshold test’, the party seeking spousal maintenance must be able to demonstrate that they are not able to adequately support themselves:

• by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
• by reason of age or physical or mental incapacity for appropriate gainful employment; or
• for any other adequate reason, which may include, or example:
• the care of an adult child with a disability; or
• circumstances in which the party applying for spousal maintenance, despite working to their capacity, is still unable to meet their reasonable needs.

Where a party can show that they are unable to adequately support themselves, then the other party’s liability to financially support or ‘maintain’ them will depend on their capacity to do so.

Accordingly, before a Court will make an order for spousal maintenance, it must be satisfied not only of one party’s need for maintenance, but also of the other party’s capacity to provide that maintenance.

How does the Court determine whether one party is able to support themselves?

The Family Law Act 1975 lists several matters that a Court should take into account when deciding whether a person is able to adequately support themselves. Those matters include:



• the age and state of health of each of the parties;
• the income, property and financial resources of each of the parties;
• the physical and mental capacity of each of the parties for appropriate gainful employment;
• whether a party has the care or control of a child from the relationship who has not yet turned 18 years of age;
• commitments of each of the parties that are necessary to enable the party to support themselves;
• whether or not the party seeking spousal maintenance has a standard of living that in all of the circumstances is reasonable;
• the extent to which a party who is applying for spousal maintenance has contributed to the income, earning capacity, property and financial resources of the other party;
• the duration of the relationship and the extent to which it has affected the earning capacity of the party who is applying for spousal maintenance;
• any other fact or circumstance, which in the opinion of the Court, the justice of the case requires to be taken into account.

In determining an application for spousal maintenance, the Court will have regard to the assets of the applicant.

However, the Court will not normally make an order that requires an applicant to use their own capital before making an order for spousal maintenance, e.g. the Court will not require the applicant to increase the amount of a loan over real property to support themselves.

Is there a time limit to apply for spousal maintenance?

Where the parties to a relationship were married, an application for spousal maintenance can be made at any time after separation but must be made within 12 months of a divorce order being made.

Where the parties were previously in a de facto relationship, an application for spousal maintenance must be made within two years of separation.



The Family Law Act 1975 does make provision for an application to be brought outside of these time limits, so if you are uncertain as to whether you can still bring an application for spousal maintenance you should contact us as soon as possible.

How long does a spousal maintenance order last?

An order for spousal maintenance will come to an end:



• on the death of either party;
• on the remarriage of the person receiving spousal maintenance, unless in special circumstances a Court orders otherwise; or
• on a date that is specified in the spousal maintenance order.

Is a spousal maintenance order limited to the payment of money?

A spousal maintenance order does not have to be an order for the payment of money by one party to another. It can also be an order for the:



• use of a motor vehicle;
• exclusive occupation of a home (with the amount the property could otherwise be tenanted for being the amount of spousal maintenance);
• direct payment of expenses, for example, private health insurance premiums.

Can a spousal maintenance order be varied?

Tailored Expert Family Law Advice

Whilst this article is intended to provide a general overview of the requirements necessary to apply for an order for spousal maintenance, each case turns on its own facts and there are a number of matters which can significantly impact on whether an application will be successful. At Frigo James Legal we can provide you with expert family law advice that is tailored for your circumstances. To find out whether you can apply for, or object to, an order for spousal maintenance, contact our experienced Gold coast family lawyer Mr Andrew James to arrange a consultation on 07 5621 3799 or info@fjlegal.com.au.