What is ‘spousal maintenance’, and am I eligible to receive spouse maintenance payments?

When a relationship breaks down, parties are often left struggling with the additional pressures of living on a single income or no income, depending on your personal circumstances. Spousal maintenance is the financial support of one spouse, or former de facto partner, to the other. Spousal maintenance payments are often are complex and emotional topic, for both the party seeking payments or the party requested to pay it. But what is spousal maintenance, and how do I know if I am entitled to receive, or required to pay it?

Under the Family Law Act 1975, a party to a marriage has a responsibility to financially assist their spouse, or former de facto partner, if that person cannot meet their own reasonable expenses or adequately support themselves from their own income or assets. Spousal maintenance is not automatic or guaranteed. If parties do not privately agree to provide support to one another, an application must be made to the Federal Circuit and Family Court of Australia, and not every person is entitled to receive spousal maintenance.

There is a twofold “threshold test” for spousal maintenance, which asks:

1.  Is the payer reasonably able to pay; and

2. Is the applicant unable to adequately support themselves?

A party may be unable to adequately support themselves for a number of reasons, and the word ‘adequate’ does not have only one meaning in this context. The court must make a decision which is reasonable and adequate based on the unique circumstances of each application, and must consider factors such as:

1. The age and health of each party;
2. The income, property, financial resources and earning capacity of each party;
3. Whether either party has care or control of a child of the marriage;
4. The commitments of each party that are necessary to enable the party support themselves or a child for which the party has responsibility;
5. A reasonable standard of living based on the circumstances;
6. The length of the relationship; and
7. Financial circumstances relating to cohabitation with another person.

There are three different types of applications for maintenance, being:

1.   Urgent maintenance;

2.  Interim order for maintenance; or

3. Final order for maintenance.

According to section 77 of the FLA, where a party is in immediate need of financial assistance but it is not practicable to determine immediately what order, if any, should be made, the court may order the payment, pending the conclusion of he proceedings, of such periodic sum as the Court considers reasonable.

Spousal maintenance can be paid in lump sum or periodic payments, but can only be dealt with after property settlement. It is necessary to determine periodic maintenance first before lump sum maintenance, lump sum maintenance being the capitalisation of the periodic maintenance conclusion. Before lump sum maintenance can be awarded, the court must be satisfied that the components necessary to justify a periodic award, being need and capacity, and determine the amount in question and the duration of that order.

The amount and duration of spousal maintenance payments will be calculated on the basis of the individual circumstances of each matter.

If you are separating or considering separating from your partner, and are feeling increased pressure while living on one, or no income, and believe spousal maintenance may assist, reach out to our specialist team of family lawyers today. Our experienced team work across North Sydney, Sydney CBD and Leichhardt, and can provide assistance and clarification in relation to all of your spousal maintenance questions.