Spousal Maintenance

Date: Nov 02, 2010
Document Type: Newsletter

Spousal maintenance is the responsibility of one party to a marriage to financially support the other person after separation or divorce.

Spousal maintenance is not automatic. After separation or divorce, there is no automatic entitlement to receive spousal maintenance from your former partner. In most case, maintenance is only payable where one partner cannot reasonably support themselves and the other person has the capacity to pay maintenance.

In most cases, the law requires you to try to resolve disputes before going to court. It is often a good idea to try to reach an agreement on maintenance when you are negotiating a property settlement. This way all financial issues can be resolved at the same time.

If you cannot reach an agreement with your former partner, you can apply to the court for a financial order. In order to be successful, it is necessary to demonstrate that you require maintenance and that your ex-partner is able to pay maintenance. In determining whether spousal maintenance should be payable, the court will consider factors such as:

  • income, property, financial resources and debts;
  • age;
  • state of health;
  • ability to earn an income (including whether this has been affected by the marriage);
  • what is considered to be a suitable standard of living; and
  • whether any children live with you or your former partner.

The court will make the financial order based on what is fair to both people.

Applications for spousal maintenance must be made within 12 months of your divorce becoming final or within two years from the date that your de facto relationship ended if you separated after 1 March 2009. If you have missed these deadlines, it is important to seek immediate legal advice. In some circumstances, late applications may be brought with the permission of the court.

Spousal maintenance orders generally continue until remarriage or death. Maintenance may also end other circumstances, such as:

  • the recipient’s financial situation improves because of a new de-facto relationship;
  • changes to child care responsibilities;
  • improved earning capacity.

Once a spousal order is in place, both parties have to abide by the terms of the order. In order to end maintenance, it is necessary to apply to the court to change the terms of the order. 

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