Spousal Maintenance
The end of a relationship often brings financial uncertainty. For some people, separation means adjusting to a reduced income while managing housing costs, everyday expenses and possibly the ongoing care of children. For others, it raises concerns about whether they may be expected to financially support a former partner.
In certain circumstances, Australian family law allows one former spouse or de facto partner to provide financial support to the other. This is known as spousal maintenance.
Spousal maintenance is not automatic, and it is not available simply because a relationship has ended. Whether support is payable depends on the individual circumstances of both parties, including one person’s financial need and the other person’s capacity to provide assistance.
Considerations for Spousal Maintenance
Understanding your rights and obligations early can help you make informed decisions and avoid unnecessary disputes. If you are separating or have recently separated, obtaining legal advice before entering into any agreement may help protect your financial future.
What is Spousal Maintenance?
Spousal maintenance is financial support paid by one former spouse or de facto partner to another after separation.
The purpose of spousal maintenance is to provide assistance where a person cannot adequately support themselves and the other party has the financial capacity to help. It recognises that separation can leave one person in a weaker financial position, particularly where they have spent years caring for children, supporting their partner’s career, or dealing with health issues that affect their ability to work.
Many people assume that financial support after separation is limited to child support. However, spousal maintenance serves a different purpose and may be available in addition to other family law matters.
Why Does Spousal Maintenance Exist?
In some families, both parties maintain similar incomes throughout the relationship. In others, one person may step away from employment opportunities to care for children or support the family’s needs. Following separation, this can create a significant imbalance in financial circumstances.
Spousal maintenance exists to help address situations where one person cannot reasonably support themselves while the other has the ability to provide assistance.
Importantly, spousal maintenance is not intended to punish one party or reward the other. Rather, it is designed to address financial needs within the framework of family law.
Who May Be Eligible for Spousal Maintenance?
Eligibility depends on the specific circumstances of each case. Typically, a person may seek spousal maintenance if they cannot adequately support themselves because of factors such as:
- caring for children of the relationship
- age or health concerns affecting employment
- limited earning capacity
- insufficient income to meet reasonable living expenses
- financial disadvantage resulting from the relationship or separation
Married spouses and de facto partners may be entitled to seek spousal maintenance. However, financial needs alone are not enough. Parties’ must also consider whether the other party has the financial capacity to provide support.
What Factors Are Considered?
A range of circumstances may be considered, including:
- income and financial resources
- assets and liabilities
- reasonable living expenses
- age and health
- employment opportunities and earning capacity
- care of children
- existing financial commitments
- the overall financial position of both parties
Every situation is unique. The outcome in one matter may be very different from another, even where the circumstances initially appear similar.
Is Spousal Maintenance Permanent?
One of the most common misconceptions is that spousal maintenance continues indefinitely. However, this is not always the case.
Some maintenance arrangements are intended to provide temporary assistance while a person returns to work, undertakes study or adjusts to their new financial circumstances. Others may continue for longer periods depending on factors such as health, age and earning capacity.
Whether maintenance should continue, change or cease will depend on the circumstances.
Spousal Maintenance and Property Settlement
Spousal maintenance is separate from a property settlement. A property settlement deals with the division of assets, liabilities and financial resources following separation. Spousal maintenance deals with ongoing financial support.
Although they are different legal issues, they are often considered together because the outcome of one may affect the other. If you are negotiating a property settlement, it is important to understand how spousal maintenance may affect your overall financial position before entering into any agreement.
Spousal Maintenance and Child Support
Spousal maintenance and child support are often confused, but they serve different purposes.
- Child support is intended to contribute towards the costs of raising children.
- Spousal maintenance is financial support provided to a former spouse or de facto partner.
Depending on the circumstances, a person may have obligations relating to child support, spousal maintenance, both, or neither.
Time Limits May Apply
Failing to act within the relevant timeframes may affect your ability to pursue a claim. Because every situation is different, obtaining legal advice as early as possible after separation is strongly recommended.
Even if you are unsure whether you may be entitled to maintenance, or whether you may have an obligation to pay, seeking advice early can help you understand your position.
How Carbone Lawyers Can Help
Financial uncertainty following separation can be stressful. Questions about housing, income, parenting responsibilities and future financial security often arise at the same time.
Whether you believe you may be entitled to spousal maintenance or you have been asked to provide support to a former partner, understanding your legal position is important.
Carbone Lawyers can assist with:
- advice regarding potential spousal maintenance entitlements and obligations
- preparing spousal maintenance agreements
- assessing the strengths and risks of a claim
- reviewing financial circumstances and disclosure
- negotiating practical agreements between separated parties
- resolving disputes relating to financial support
- assisting with related family law matters, including property settlements and divorce
Our focus is on providing clear, practical guidance tailored to your circumstances. Where possible, we seek to resolve disputes efficiently and cost-effectively. Many family law matters can be resolved through negotiation without the need for lengthy Court proceedings. However, where Court intervention becomes necessary, we can guide you through the process and advocate for your interests.
FAQs on Spousal Maintenance
What is spousal maintenance?
Spousal maintenance is financial support paid by one former spouse or de facto partner to another when that person cannot adequately support themselves and the other party has the financial capacity to provide assistance.
Who can apply for spousal maintenance?
Married spouses and de facto partners may be eligible to seek spousal maintenance. Whether a person qualifies will depend on their individual financial circumstances.
Is spousal maintenance automatic after separation?
No. Spousal maintenance is not automatically payable following separation. A range of factors must be considered, including financial need and the other person’s capacity to provide support.
Can de facto partners claim spousal maintenance?
Yes. De facto partners have rights relating to spousal maintenance, provided certain legal requirements are met.
Is spousal maintenance the same as child support?
No. Child support is intended to help meet the costs of raising children. Spousal maintenance is financial support paid to a former spouse or de facto partner.
Is spousal maintenance the same as property settlement?
No. Property settlement concerns the division of assets, liabilities and financial resources. Spousal maintenance concerns ongoing financial support.
How long does spousal maintenance last?
There is no standard duration. Some arrangements are temporary, while others may continue for longer depending on the circumstances.
Can spousal maintenance be paid as a lump sum?
In some situations, financial support arrangements may involve lump sum payments rather than ongoing periodic payments.
Can spousal maintenance be changed?
Yes. If circumstances change significantly, maintenance arrangements may be reviewed or varied.
Do I need to go to court?
Not necessarily. Many matters are resolved through negotiation and agreement. However, Court proceedings may sometimes be required where an agreement cannot be reached.
What if my former partner refuses to pay?
Your options will depend on the circumstances and whether any agreement or Court order is in place. Legal advice can help clarify the most appropriate course of action.
What if I am being asked to pay spousal maintenance?
You should obtain legal advice before agreeing to any arrangement. Your own financial circumstances and ability to provide support are relevant considerations.