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16 December 2020

Am I entitled to spousal maintenance?

In some American states, when a relationship ends a spouse can be entitled to alimony for life or equalisation of the parties’ incomes for a period.

In some American states, when a relationship ends a spouse can be entitled to alimony for life or equalisation of the parties’ incomes for a period.

The Australian law is not so generous. Spousal maintenance (as we refer to it) is not an automatic right upon separation, nor is there any strict rule that the pre-separation standard of living must be maintained.

When we tell this to our clients who are avid Suits watchers (or insert any other American lawyer TV show), then depending on whom we are acting for, their response is either relief or uncertainty about their financial future.

What is spousal maintenance?

Spousal maintenance is an amount of money paid by one spouse to the other for their financial support.

It is unrelated to the financial support of children, which is dealt with separately by our child support legislation.

To be successful in an application for spousal maintenance, the Federal Circuit and Family Court must determine that:

  1. the applicant party cannot adequately support themselves for a valid reason; and
  2. the respondent party has the capacity to support the applicant.

In determining whether the applicant can adequately support themselves, the court will have regard to whether they:

  1. have the care and control of children of the marriage
  2. are unable to obtain appropriate employment due to age or physical or mental incapacity
  3. have any other need having regard to various factors in section 75(2) / 90SF(3) of the Family Law Act 1975.

How much will I get paid / be ordered to pay?

Even if the court determines the applicant is unable to adequately support themselves, the respondent is only liable to support them in so far as they are reasonably able to do so.

The respondent’s capacity to pay (if any) is assessed by determining their surplus of income after payment of their reasonable weekly needs.

If the applicant has a weekly deficit of $100, but the respondent only has a weekly surplus of $50, then the court could only order a spousal maintenance payment of $50 per week despite the applicant’s greater need.

Where possible, both spouses should continue to live after separation at the level that they had previously enjoyed, if reasonable. That is not always possible, however, where the higher costs of running two households means the parties do not have the financial resources to live at their former level of luxury.

How long will maintenance last for?

The court does expect that a party of working age will ultimately return to the workforce, particularly as their children get older and need less physical care, unless there are other reasons they can’t work, such as health issues. Spousal maintenance payments therefore are generally only ordered for a short fixed period, usually of no more than four years, to allow a party to re-train and re-enter the workforce.

For those approaching retirement age and the ability to access their super, the length of the award can be longer and, in some rare cases, spousal maintenance has been ordered for an indefinite period.

If you need any advice about your spousal maintenance entitlements as a recipient, or your obligations as a payer, you are most welcome to contact our experienced family lawyers.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Justine Woods

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