Family Lawyers Australia

Spouse Maintenance

Under the Family Law Act, a party to a marriage is liable to maintain the other to the extent that he or she is reasonably able to do so if, and only if, the other partner is unable to support him or herself adequately. In deciding whether a spouse is entitled to maintenance (and assessing how much maintenance is to be paid), a Court will take into account factors relevant to the particular case which, amongst other things includes:

- Having the care of the children of the marriage under the age of eighteen years;

- His or her age or physical or mental incapacity for employment; or

- Any other adequate reason.

In considering maintenance the Court is not permitted to take into account the entitlement, of the party to whom the maintenance may be payable, to any pension from Centrelink. Thus a spouse whose only source of income is social security benefits will be treated as having no income at all.

Maintenance for a spouse ceases on his or her death or remarriage or upon the death of the person making the maintenance payments. If there is a change in financial circumstances of either party the Order can be varied.

Periodic spousal maintenance may be ordered for a specific period of time, such as until the children are old enough to attend school and the parent can resume paid employment, or for sufficient time to enable the parent to study, update their skills and obtain gainful employment.

Often the parties will resolve the issue of spouse maintenance by one paying to the other a lump sum rather than making payments on a weekly or other periodic basis. A lump sum payment may be preferable for a party as it finalises financial matters and avoids the need for one party to make (and the other to wait for) periodic payments.

An application for spousal maintenance can be made immediately following separation and it is not necessary to wait until Divorce. However, once a divorce has been obtained the application for spousal maintenance must be made within twelve (12) months of the date of the decree absolute (a month after the divorce hearing). If the application is not lodged within that time a person must prove to a Court that there are special circumstances which allow the application to be made late.

Having said all that if you have a capacity to support yourself we will encourage you to find a job that provides you with satisfaction. Engaging a career counsellor and considering a return to college or university may seem out of reach to begin with but with the rest of your life to consider, upskilling and making sure you find job satisfaction are important considerations and issues that the Court will consider in determining the length and extent of your entitlement to maintenance.