How do the courts calculate spousal maintenance?

Date: Oct 12, 2015

As part of a financial settlement following separation or divorce, there may be an arrangement for one party to a marriage or relationship to pay financial support to their former spouse or partner, when they are unable to adequately support themselves.

This arrangement is known as spousal maintenance and can even be applicable in situations where two people are still married. De facto partners are also eligible to receive maintenance in circumstances where the relationship has broken down and a former de facto partner is unable to adequately support themselves.

The courts have the power to deal with spouse maintenance applications under the Family Law Act. According to the law, a person may be entitled to receive spousal maintenance in a situation where they are unable to adequately support themselves and the other party can provide such support.

A successful application for spousal maintenance is not a guarantee. The person seeking it first needs to make an application to the courts. The Court will then consider the applicant's needs and the capacity of the respondent to pay.

The courts will make a determination based on factors such as the applicant's and respondent's age and health, their parenting commitments and employment situation, including earning capacity.

An important factor for the courts is income earning capacity, or the ability of the applicant to earn enough to support themselves through their own efforts. The courts will examine incomes, the value and types of property owned and any other financial resources to make a judgement on whether an order for maintenance is appropriate.

Facts such as the length of the marriage, protecting the spouse's role as parent and pension eligibility may also affect an application for spousal maintenance.

Other matters material to a spousal maintenance application include what is a suitable standard of living for the applicant to have. Sometimes marriage affects a person's ability to earn an income that can support their lifestyle and the courts are willingly to acknowledge this with an order for maintenance.

However, people should always be aware that the courts will dismiss an application if it can be proved the applicant has the ability to work and earn enough income for themselves without the support of their current or former partner.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

If you need any advice about spousal maintenance, contact a divorce lawyer today.