Spousal Maintenance

Key Considerations for Spousal Maintenance

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• Eligibility: The applicant must demonstrate an inability to support themselves adequately and that the other party has the financial capacity to provide support.

• Timing: Applications for spousal maintenance must be filed within 12 months of a divorce becoming final or within two years of the end of a de facto relationship unless permission is granted by the court.

• Court Jurisdiction: The Family Law Act 1975 (Cth) governs spousal maintenance for married couples. For de facto relationships, Part 5A of the Family Court Act 1997 (WA) applies in Western Australia, while Part VIIIAB of the Family Law Act 1975 (Cth) applies elsewhere in Australia.

And:

• Adequacy is not determined by a fixed or subsistence-level standard but must consider the circumstances under s 75(2).

• Applicants are not required to deplete all assets to qualify for maintenance.

• Both parties' financial capacities and standards of living are balanced to determine a fair outcome.

• Luxury lifestyles are not guaranteed merely because one party is wealthy.

 

Maintenance for De Facto Relationships:

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Maintenance is not available for people in de facto relationships that broke down before 1 December 2008. However, if there are children of the relationship, the mother can institute court proceedings under the Family Law Act against the father for proper contributions toward child-bearing and related expenses.

 

Eligibility to Apply

If you are or were married, you can apply for spousal maintenance through the Federal Circuit and Family Court of Australia (FCFCOA) if you cannot support yourself because:

• You care for a child of the marriage under 18 years old.

• You cannot work due to age, physical, or mental disability.

• There are other adequate reasons (s 72(1) of the Family Law Act (FLA)).

Applications must be filed in Division 2 of the FCFCOA (s 132 FCFCOA Act).

 

Timeframes for Applying

You can apply:

• Before separation or divorce.

• Within 12 months of your divorce being finalised (or with court permission if later).
  The court may allow late applications if not doing so would cause hardship or if you couldn’t support yourself without government benefits (s 44(4) FLA).

 

Disclosure Requirements

Both parties must provide full financial information, including tax returns, bank statements, and other relevant documents (r 6.06 of the Rules).

 

How the Court Decides

The court uses a four-step process:

1. Need and Capacity: The applicant must show they cannot support themselves, and the respondent has the means to pay (s 72 FLA).

2. Relevant Factors: The court considers health, income, caring for a child or another person, standard of living, responsibilities, and other factors (ss 72, 74 and 75(2) FLA).

3. Discretion: The court has flexibility to determine what is fair.

4. Reasonableness: The standard of living should be fair in the circumstances.

 

Urgent Applications

If immediate financial help is needed, you can apply for urgent maintenance. These are temporary orders made quickly, often on a short-term basis (s 77 FLA). The applicant must show they urgently need financial help, but it’s not possible to decide right away what the final order should be. These are temporary or quick-fix orders that can be requested verbally and decided without the other party being present (i.e., ex parte). The order for urgent financial maintenance is typically made to cover the period until the next hearing, by which time detailed financial information should be available to allow a thorough review by the court and a decision on the appropriate maintenance order.

 

Changing or Ceasing Maintenance Orders

A maintenance order can be changed or ended if circumstances change, such as remarriage or significant financial changes (s 83 FLA). Maintenance usually ends if the receiving spouse remarries or either spouse passes away, except in special cases (s 82 FLA). The court can also vary the orders to increase or decrease the amount of maintenance to be paid if the court is satisfied that the circumstances of the person receiving the maintenance or the person liable to pay the maintenance have significantly changed.

Note: If a party receiving maintenance remarries, they must notify the person responsible for making the payments of the remarriage date (s 82(6) FLA). The paying party can recover any payments made after the remarriage date (s 82(7) FLA).

To end the maintenance, new court proceedings must be instituted because the maintenance does not automatically cease if the party receiving the maintenance remarries or enters into a de facto relationship. However, the parties can end the maintenance through mutual agreement.

 

Lump-Sum Payments
Maintenance can be paid as a one-time lump sum, calculated to cover future needs (s 77A FLA).

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After Death

In some cases, you may claim maintenance from a deceased spouse's estate under, for example, the Administration and Probate Act 1958 (Vic) (s 91).

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​This is a general overview. Spousal maintenance is a nuanced area of family law, requiring careful consideration of legislation, case law, and individual circumstances. Please contact us or book a Zoom appointment with us to seek professional legal advice tailored to your specific circumstances.

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