Spousal Maintenance

Spousal maintenance is a payment made by one spouse to their former spouse in order to assist them support themselves after separation. Spousal maintenance can be paid either as a weekly amount for a certain period of time (eg. 6 months, 1 year, 3 years) or it can be paid as a lump sum.

Are you eligible to receive spousal maintenance?

Unfortunately, not all people are eligible to apply for or receive spousal maintenance. Before a Court is able to make an order for spousal maintenance to be paid, they firstly need to consider whether you meet the eligibility criteria.

If you are married, you are able to apply for spousal maintenance. The date of separation has no bearing on whether you are able to apply for spousal maintenance. If you were in a defacto relationship, the date of separation must be after 1 March 2009 in order for you to be eligible to apply for spousal maintenance. If you separated prior to that date, then you will not be eligible to apply for spousal maintenance.

You may not be eligible for spousal maintenance if:

• You have remarried;
• You have re-partnered and living in a new defacto relationship; or
• You are in a defacto relationship outside Australia.

When will spousal maintenance be paid?

The payment of spousal maintenance is not automatic. The Court will also look at the needs of the applicant as well as the capacity of the other party to pay. If the Applicant has a need for more money (ie. they are unable to meet their day-to-day expenses) and the other party has surplus income available such that they have capacity to pay, then spousal maintenance may be payable.

It is ultimately a matter of balancing and assessing the financial needs of one party against the ability of the other party to pay. Generally, a person can be liable to maintain their former spouse, to the extent that they can reasonably afford to do so, if their former spouse is unable to support themselves adequately.

You may be in desperate need to receive spousal maintenance and are eligible to receive it however, if your former spouse does not have sufficient income or the capacity to pay spousal maintenance to you then the Court may be unable to make an order for payments to be made to you.

Some examples of why you may require spousal maintenance to be paid to you are:

  • You have the care and control of the children of the relationship who are not yet aged 18 years;
  • Your age;
  • If you have a physical or mental incapacity which hinders your ability to obtain gainful employment;
  • Any other adequate reason, having regard to Subsection 75(2) of the Family Law Act 1975.

The Family Law Act states that a person has a responsibility to financially assist their former spouse if they are unable to meet their own reasonable expenses from the income and assets that they have themselves. The extent to which a person may be liable to support their former partner depends on what they can afford to pay.

The most common reason you would be able to receive spousal maintenance is if you are unable to earn any income (or are earning a limited income) and the other party has capacity to pay you these additional funds.

You may also be eligible to be paid spousal maintenance if:

  • You have had to give up work to care for a child of the relationship and it is unreasonable for you to obtain work or you do not have the necessary skills enabling you to re-enter the workforce; or
  • You are unable to work due to ill health or health issues or you are suffering a mental or physical disability.

There are specific matters that the Court considers when deciding whether you are eligible to receive spousal maintenance or liable to pay spousal maintenance. For a detailed list please refer to our Factsheet entitled “Matters the Court considers when deciding whether spousal maintenance is payable”.

For further information and commonly asked questions in relation to spousal maintenance please refer to our Factsheet entitled “Spousal Maintenance”.