There are two kinds of spousal maintenance applications, handled by either the Family Court or the Federal Circuit Court:
- Spouse maintenance: Financial payments made by a party to a marriage to their former husband or wife under circumstances where a person isn’t able to satisfactorily support themselves.
- De facto partner maintenance: Financial payments made by a party to a de facto relationship that has ended to their former de facto partner under circumstances where a person isn’t able to satisfactorily support themselves.
Under the Family Law Act 1975, a person has a duty to provide financial assistance to their spouse or former de facto partner, if the person is unable to cover their own reasonable expenses out of their personal income or assets.
Where the need is present, the two parties have an equal responsibility to regularly support each other as much as they can. This duty can go on following separation and divorce. The amount of support hinges on what the other party is able to pay.
What a court takes into account
The court takes into account the needs of the person applying and the respondent’s ability to pay. The court takes into account these factors about the two people:
- The age and health of the individual.
- The income, property, and financial resources of the individual.
- The individual’s capacity to work.
- What is a reasonable standard of living.
- If the marriage has impacted on the individual’s capacity to earn an income.
The court also takes into consideration who the children live with, that being persons under the age of 18 or adult children who have a disability.
Can someone who was in a de facto relationship apply for spouse maintenance?
Check out the De facto property regime page on the Attorney-General’s website if you were in a de facto relationship and are weighing up whether to lodge an application for maintenance orders to the Court. This will clarify if you are eligible or not to apply.
If I enter into a new relationship, will I still receive spousal maintenance?
If you get married to someone else, you don’t have an entitlement to maintenance, except if the court gives an order to the contrary. If you begin a new de facto relationship, the court will consider the financial relationship between your new de facto partner and yourself, when taking into account if you are capable of providing for yourself adequately.
Do spouse maintenance applications need to be made by a certain time?
- If it was a marriage, an application for spouse maintenance would need to be submitted within one year of the finalisation of the divorce.
- If it was a de facto relationship, an application for de facto partner maintenance would need to be lodged within two years of the end of the de facto relationship.
If an application is made outside of these timeframes, one would require special permission of a court. This won’t always be granted.