fbpx

Family Law Blog

Spousal Maintenance Australia – Everything you Need to Know

Welcome to our comprehensive guide on Spousal Maintenance in Australia. We’re going to run through everything you need to know about Spousal Maintenance and how it works, from the eligibility criteria to the application process, to some of the questions that might come up after a Spousal Maintenance order is made.

To try and keep things a little bit organised, we’ve broken up our guide to Spousal Maintenance in Australia like this:

  1. Understanding the Concepts of Spousal Maintenance:
    1. What is Spousal Maintenance?
    2. Is Spousal Maintenance the same as Alimony?
    3. What is a “Spouse” in this context?
    4. Can you get Spousal Maintenance from a De Facto Relationship?
  2. Eligibility and Process for Spousal Maintenance:
    1. Who is Entitled to Spousal Maintenance in Australia?
    2. How does the Court determine the amount of Spousal Maintenance?
    3. Are there time limits on applying for Spousal Maintenance?
    4. How do you apply for Spousal Maintenance?
    5. Will a Spousal Maintenance application take a long time?
  3. Dealing with Spousal Maintenance Payments:
    1. Is Spousal Maintenance permanent?
    2. What happens to Spousal Maintenance if the receiver starts a new relationship?
    3. Are Spousal Maintenance payments Taxable in Australia?
  4. Some practical comments about Spousal Maintenance

 

Core Concepts of Spousal Maintenance

Before we leap into the more technical parts of Spousal Maintenance, it’s essential to understand some of the core terms. This will help us appreciate what Spousal Maintenance is, and what it is not.

What is Spousal Maintenance?

Spousal Maintenance is where one party to a marriage must pay money to a (usually former) spouse who is unable to adequately support themselves.

Spousal Maintenance is not the same thing as child support. That said, as we discuss below, looking after a child of the relationship is a relevant factor.

Whereas property settlement as part of separation is concerned with distributing a pool of property at a given time, Spousal Maintenance is concerned with ongoing payments between the parties for a certain period.

 

Is Spousal Maintenance the same as Alimony?

If you’re Australian, it’s best to remove the word “alimony” from your vocabulary entirely.

Alimony is the word used in the United States to describe a system of payments that might occur after a relationship ends.

However, saying it was “the same” as Spousal Maintenance would be over-reaching.

Spousal Maintenance is a separate and distinct area of law with its own body of principles to apply. So if you’re Googling answers to questions on topics like this one, try to ensure that they are on point for your situation (specifically, your country of residence) so you don’t get taken down the garden path.

What is a “Spouse” for the purposes of Spousal Maintenance?

Strictly, a “spouse” for Spousal Maintenance is a party to a current or former marriage – a husband or wife.

However, see our next heading for how de facto relationships have a nearly identical ability to seek ongoing support.

Can you get Spousal Maintenance after a De Facto Relationship?

Yes.

The Court can make identical types of orders for parties to de facto relationships who are unable to adequately support themselves.

Strictly that is called “de facto maintenance” rather than Spousal Maintenance.

There are slightly different time limits to make your application after a de facto relationship breaks down. We talk about these more below.

For this article, we’re just going to use the phrase Spousal Maintenance, however there are essentially no meaningful differences other than timing.

Entitlement to and Process For Spousal Maintenance

Now that we’ve covered what Spousal Maintenance is and some of the basic threshold questions to ask, we’ll work through who is entitled to apply for Spousal Maintenance and how they go about doing it.

Who is Entitled to Spousal Maintenance in Australia?

The Family Law Act contains an obligation that one spouse must “maintain” the other, to the extent they are able, if that other party is unable to support themselves “adequately” because:

  1. They have care of a child of the relationship who is under 18
  2. Their age or physical or mental incapacity prevents them from getting a suitable job;
  3. Of any other “adequate” reason.

So, if you have one of those factors (or another adequate reason) which causes you to be unable to support yourself “adequately”, you can seek spousal Maintenance.

You’ll notice here that you don’t need to be divorced or separated – the obligation exists during, and after, the relationship. In theory, you can apply for spousal Maintenance while still in your relationship, though this typically doesn’t happen much.

What counts as “adequate” support will vary a bit from situation to situation.

Clearly, if you are raising a child full-time and cannot feed yourselves or pay for rent, that will not be considered “adequate”.

How does the Court Determine how much Spousal Maintenance should be Paid?

The Court looks at two main factors to determine how much Spousal Maintenance should be paid:

  1. The needs of the person applying for support; and
  2. The capacity of the other to pay Maintenance.

That is going to naturally include questions for you both about lots of things like:

  1. How old you are;
  2. How much you earn;
  3. How much you have (in terms of ongoing property);
  4. What is considered a suitable standard of living, potentially with regard to the standard of living you had while you were married;
  5. Whether your marriage has affected your ability to earn money;
  6. Who the children under 18, or adult children who have a disability, will be living with.

In essence, the Court wants to ask all of the questions necessary to figure out each different party’s capacity and needs going forward, having regard to the nature of their lifestyle when they were still in a relationship.

From there, it will end up with a position on:

  1. Whether spousal Maintenance should be paid at all; and
  2. If so, how much it should be.

What is the Time Limit on Filing for Spousal Maintenance?

There are different time limits for Spousal Maintenance depending on your situation. The time limits are essentially the same as those for other property and financial matters.

If you are married and not yet divorced, then you can apply at any time (noting our comments about that married persons can apply for Maintenance).

If you are divorced, then you have 12 months after your divorce order was made to apply for Spousal Maintenance.

If you were in a de facto relationship, you have 24 months after your relationship ended to apply for de facto Maintenance. This highlights the need that we discussed in this article of attempting to identify when the end of a de facto relationship actually occurred.

How do you Apply for Spousal Maintenance?

You apply for Spousal Maintenance by an application to the Federal Circuit and Family Court.

The application is often made at the same time as an application relating to property matters, child support and parenting orders.

If you are only applying for Spousal Maintenance and no other order types, then there is no filing fee. If you are combining applications, then a fee will be payable.

You should run through certain steps before any application for financial matters. You can read about those here, but your family lawyers will also be able to work through those with you.

Finally, much like many other parts of the separation process, if you and your ex agree on the outcome, you can ask the Court to make orders by consent. For obvious reasons, consent orders will be a much faster process than contested litigation.

Otherwise, once you file your application, you will need to serve it on (that is, give it to) your ex. Generally, lawyers will use third-party agents to do this, so that you don’t need to do it personally.

Your ex will have an opportunity to respond, and the Court processes to encourage the parties towards a resolution or, if not, towards a Court hearing will then take place.

Will getting Spousal Maintenance Take a Long Time?

As with all Court actions, an application for Spousal Maintenance could take some time to finalise, especially if your former spouse disputes the orders you are seeking. That might be months or, sometimes, years.

If your financial situation is dire without the maintenance you are seeking, then you can ask the Court to speed up the process and give you an urgent hearing.

Spousal Maintenance After the Order is Made

Once you are receiving Spousal Maintenance, there are a few questions that often come up about the process going forward.

Is Spousal Maintenance Permanent?

Spousal Maintenance is rarely permanent, although in theory it could be.

Ordinarily at a certain point the factors that made a person eligible for Spousal Maintenance come to an end. For example, the child they were supporting was grown and able to work.

That being the case, most Spousal Maintenance orders are temporary.

What Happens to your Spousal Maintenance if you start a New Relationship?

Unless the Court says otherwise, your Spousal Maintenance (or de facto maintenance) will end if you marry someone else.

If you enter into a new de facto relationship, the Court will consider the financial situation between you and your new partner in considering what impact the new relationship should have on any existing maintenance orders.

What happens if a Spousal Maintenance Payment is Missed?

Failure to make a Spousal Maintenance payment is, technically, a breach of a Court order.

The person failing to pay is therefore in contempt of Court. You could leap into Court and start seeking sanctions for non-payment, though doing this straight away isn’t always the best plan.

In practical terms:

  1. If your ex fails to make a payment, contact them promptly to rectify (either yourself or through your lawyers). If they still fail to pay then you may need to consider enforcement options with your family lawyers;
  2. If you are unable to make a Spousal Maintenance payment in the short term, then contact your ex and explain the situation (again – through your lawyers if necessary). If there is a longer term problem (say, you lost your job) that now prevents you from complying with the previous orders, you will need to seek advice about modifying the orders (see below).

Things have Changed – Can a Spousal Maintenance Order be Adjusted?

Perhaps one of you had a windfall gain, or perhaps one of your incomes or needs has changed significantly since the initial maintenance orders were made. What should you do then?

Minor changes won’t persuade a Court to adjust previously made orders, so someone working 10 hours a week instead of 8 isn’t likely to make much difference.

However, if someone gains or loses a job, gets a significant pay rise/cut, or has a major change in their circumstances that dramatically affects the basis on which the earlier orders were made, then you can go back to the Court to seek modification.

So, for example, let’s say Sally was ordered to pay Eric Spousal Maintenance of $100 per week. The Court was going to order a higher amount based on Eric’s financial needs and the fact that he was raising their 2 young children after separation, however Sally had limited available income.

Sally then lands a cracker of a new job which pays her 5x what her previous job did.

In that situation, Eric would be sensible to get some advice about an application to modify the previous orders.

Do I need a Lawyer to Apply for Spousal Maintenance?

In theory, you don’t.

In practice, you do.

Is Spousal Maintenance Taxable in Australia?

First – get tax advice if you’re unsure. Generally though…

If you are receiving Spousal Maintenance, it is not considered taxable income.

Similarly, if you are paying Spousal Maintenance, then you cannot claim it as a deduction.

Some Parting Comments about Spousal Maintenance

Our guide on Spousal Maintenance above has set out the fundamentals that most people need, or want, to know in order to consider whether or not to:

  1. Seek Maintenance from their ex; or
  2. Agree to, or resist, an application from their ex seeking Spousal Maintenance.

Much like many Court applications, a big contested litigation process can be expensive and time consuming. For that reason, it’s always important to try and pursue negotiations if at all reasonably possible.

Sometimes the application for Spousal Maintenance forms part of a larger series of separation steps. Then, it’s also a good idea to consider that the way you (and your ex) deal with this is going to interact in various ways with those other applications.

A large property settlement, for example, might be considered a factor in deciding how much Spousal Maintenance is needed for you to adequately provide for yourself.

There are also intangible impacts. If one party feels aggrieved about the outcome of, say, the parenting orders that the Court makes, then that could affect how they decide to conduct the separation process when it comes to property and financial matters.

That being the case, it’s always important to consider the bigger picture as part of your separation. Work closely with your family lawyers to ensure that your decisions along the way are cohesive and you have taken into account all of the possible flow-on effects at both strategic and legal levels.

That way, while the process is challenging, you can ensure that your separation leaves you with what is the best outcome possible for your immediate and future needs.

Our Blog

May 28 2024
Separating when you and your ex have children inevitably involves challenging decisions to be made about how those children should be cared for going forward. Here we have another person involved so the factors to take into account...
May 7 2024
In our guide on binding financial agreements, we have set out the various elements that need to be in place for a financial agreement to be valid and enforceable. One question that comes up from time to time is about what happens...
March 25 2024
The headline of this article probably doesn’t come as a surprise to everyone. However, with social media being a dominant and largely public form of sharing our thoughts and experiences, the importance of managing your social media...

Contact Us

Call us +61 3 7002 6222

Email us click here

Visit us Raglan House, 4/27-33 Raglan Street
South Melbourne VIC 3205 map

 

 

Accessible Family Law acknowledges the First Nations People paying respect to Elders past, present and future as the traditional custodians of this land.  We live, learn and work on the lands of the Bunurong people of the Kulin Nation.  flags 2