Spousal maintenance in Australia: What you need to know
Spousal maintenance can be ordered by the court to ensure a party can maintain a reasonable standard of living after the breakdown of a relationship. The purpose of spousal maintenance is to provide financial support to one party who cannot adequately support themselves.
Under the Family Law Act 1975, a party has a responsibility to financially assist their former partner if that person cannot meet their own reasonable expenses from their personal income or assets.
Spousal maintenance is not commonly sought in family law matters as generally parties will support themselves following separation. However, it is important for parties and practitioners to know that it is an option if one party cannot adequately support themselves.
In this week’s blog we look at spousal maintenance under the Family Law Act.
What is spousal maintenance?
Spousal maintenance can be a weekly payment, a lump sum payment or a payment in-kind, for example paying the mortgage that a party is living in.
If a party is receiving a weekly spousal maintenance payment, that payment generally ends when the parties finalise their property settlement.
Under section 77 of the Act a party can request urgent spousal maintenance if they are in immediate need of financial assistance, and it is not practicable for the court to immediately determine what order should be made regarding spousal maintenance. An urgent spousal maintenance is to cover the period until the matter can be listed for an interim hearing where the court can properly consider whether spousal maintenance should be paid.
In most cases where spousal maintenance is paid, it is generally pursuant to a Court order. However, in come cases parties may agree that spousal maintenance needs to be paid, and they agree on the amount and the period for payment.
Is spousal maintenance the same as child support?
No, spousal maintenance is different from child support.
Child support is calculated by the Child Support Agency and covers costs associated with the children of a relationship. Spousal maintenance is determined by the Federal Circuit & Family Court of Australia and relates to the parties’ expenses.
Another important distinction is that spousal maintenance will generally end when the parties have finalised their property settlement. Child support is generally payable until the parties youngest child turns 18 years of age.
When is spousal maintenance payable?
In Australia, spousal maintenance is not automatically ordered. The party seeking spousal maintenance must demonstrate that: -
They cannot support themselves adequately because they have the care of a child of the relationship; or their age or physical/mental health impacts their ability to obtain gainful employment; or they have another adequate reason.
The party being asked to pay the spousal maintenance has capacity to pay spousal maintenance.
How do I apply for spousal maintenance?
If parties cannot agree, spousal maintenance can be sought by filing an application with the Court. In the application you must set out what orders you are asking for. You are also required to provide the Court evidence of your income, assets, and expenses in a Financial Statement.
How long do I have to file an application?
The timeframe for filing an application for spousal maintenance is the same as the timeframe for seeking a property settlement. That is 12 months from the date of your divorce for married parties and two years from the date of final separation for people in a de facto relationship.
If you do not file an application within these time limits, you can ask the court for special permission to file an application out of time. However, this may not be granted unless you have a good reason for failing to file your application within the limitation period.
Can spousal maintenance arrangements be modified?
Spousal Maintenance arrangement can be modified if there’s a significant change in circumstances, for example someone has a change in their employment status, someone’s health declines or someone remarries. Either party can apply to the court for a variation of the original order.
How long do you have to pay spousal maintenance ?
In most cases, spousal maintenance is a temporary arrangement. Temporary maintenance is usually granted during the separation process until the final order is made.
While the court can make orders for an ongoing spousal maintenance payment this rarely occurs in Australia. Permanent maintenance will only be ordered if there is a clear need for long-term support and the paying spouse has the capacity to provide that support.
Is spousal maintenance taxable in Australia?
No, spousal maintenance is not taxable in Australia and payments are not considered taxable income for the recipient, and the payer cannot claim a tax deduction for making payments.
Each spousal maintenance case is different, and you should seek specific independent legal advice about your entitlements in your circumstances as navigating spousal maintenance is complex.
Please note: the information in this article is general in nature and is not legal advice. For legal advice about your circumstances, contact us to make an appointment with one of our solicitors.
