When a relationship ends, one person may find that they cannot adequately support themselves financially while their former partner has the ability to provide financial assistance.
In these circumstances, spousal maintenance may be available.
Spousal maintenance is financial support paid by one former partner to another after separation or divorce where the person seeking support is unable to meet their reasonable living expenses and the other person has the capacity to pay.
However, spousal maintenance is not automatically available after separation. Unlike child support, which focuses on meeting the needs of children, spousal maintenance considers the financial circumstances of both adults and whether ongoing financial assistance is appropriate.
What Is Spousal Maintenance?
Spousal maintenance is a financial payment made by one spouse or de facto partner to the other after the breakdown of a relationship.
The purpose of spousal maintenance is to assist a person who cannot adequately support themselves financially, where their former partner has the ability to provide support.
Spousal maintenance may apply:
- After separation
- During divorce proceedings
- During property settlement negotiations
- After a divorce has been finalised in certain circumstances
The payment may be made:
- On a regular basis, such as weekly or monthly payments; or
- As a lump sum in some circumstances
The amount and duration of spousal maintenance depend on the specific circumstances of each matter.
Who Is Eligible for Spousal Maintenance in Australia?
A person is not automatically entitled to spousal maintenance simply because they have separated or divorced.
Generally, the Court must be satisfied that:
- The person seeking maintenance is unable to adequately support themselves; and
- The other party has the financial capacity to provide support.
For example, a person may have difficulty meeting their reasonable expenses because they:
- Have primary care of young children
- Have reduced their working hours during the relationship
- Are unable to work due to illness or injury
- Have limited employment opportunities
- Are undertaking education or retraining
At the same time, the person being asked to pay must have sufficient income or financial resources to provide support after meeting their own reasonable expenses.
How Does the Court Decide Whether Spousal Maintenance Should Be Paid?
The Federal Circuit and Family Court of Australia considers a range of factors when deciding whether spousal maintenance should be ordered.
The Court may consider:
1. The income and financial position of both parties
The Court will review each person’s:
- Income
- Assets
- Financial resources
- Expenses
- Ability to earn income
A person’s current financial circumstances and future earning capacity may both be relevant.
2. The age and health of each person
The Court considers whether either person has health issues, disabilities or other circumstances that affect their ability to work or support themselves.
3. The care of children
The responsibilities of caring for children can be an important consideration.
For example, a parent who provides primary care for young children may have limited ability to return to full-time employment.
4. The length of the relationship
The duration of the marriage or de facto relationship may affect how financial responsibilities and contributions are assessed.
Longer relationships may involve greater financial interdependence between the parties.
5. Each person’s financial commitments
The Court considers each party’s reasonable expenses and responsibilities, including:
- Housing costs
- Living expenses
- Child-related costs
- Other legal obligations
6. The standard of living after separation
The Court considers what standard of living is reasonable in the circumstances following separation.
However, spousal maintenance does not necessarily require one person to maintain the same lifestyle they enjoyed during the relationship.
How Is Spousal Maintenance Calculated?
There is no fixed formula or calculator used to determine spousal maintenance in Australia.
Instead, the Court considers:
The applicant’s financial need compared with the respondent’s capacity to pay.
The assessment generally involves looking at:
- The income of both parties
- Each person’s expenses
- Assets and financial resources
- Employment capacity
- Childcare responsibilities
- Other financial obligations
For example, a person may qualify for spousal maintenance where their income does not cover their reasonable expenses, while their former partner has enough income or assets to provide assistance.
Each case is determined based on its individual circumstances.
What Types of Spousal Maintenance Payments Can Be Ordered?
Spousal maintenance may be paid in different ways depending on the circumstances.
1. Regular payments
Most commonly, spousal maintenance is paid weekly, fortnightly or monthly.
This type of arrangement may be suitable where the recipient requires ongoing financial assistance.
2. Lump sum payments
In some cases, the Court may order a lump sum payment instead of ongoing payments.
This may occur where:
- There are sufficient assets available
- The parties wish to finalise financial matters
- Ongoing payments are impractical
3. Interim spousal maintenance
Urgent or interim spousal maintenance may be available where a person requires immediate financial support while their application is being determined.
How Long Does Spousal Maintenance Last?
The duration of spousal maintenance depends on the circumstances of the parties.
In many cases, spousal maintenance is intended to provide temporary support while the recipient becomes more financially independent.
Payments may continue while a person:
- Returns to employment
- Completes education or training
- Adjusts to financial circumstances after separation
In some circumstances, maintenance may continue for longer periods if a person cannot reasonably support themselves due to factors such as age, illness or limited earning capacity.
Spousal maintenance may end or change if circumstances significantly change, such as:
- The recipient enters a new de facto relationship
- The recipient remarries
- The payer’s financial circumstances change
- The recipient becomes financially independent
What Is the Difference Between Spousal Maintenance and Child Support?
Spousal maintenance and child support are separate areas of family law.
| Spousal Maintenance | Child Support |
| Supports a former spouse or partner | Supports children after separation |
| Based on adult financial circumstances | Based on the needs of children |
| Considers income, expenses and capacity to pay | Usually assessed through Services Australia |
| Can apply to married and de facto relationships | Relates to parental responsibility |
A person may be required to pay both child support and spousal maintenance depending on their circumstances.
What Are the Time Limits for Applying for Spousal Maintenance?
Strict time limits apply when making a spousal maintenance application.
Generally:
- Married couples must apply within 12 months after a divorce order becomes final
- De facto couples generally must apply within 2 years after separation
If these time limits have passed, permission from the Court may be required before an application can proceed.
Because these deadlines can affect your legal rights, obtaining advice early is recommended.
Can Spousal Maintenance Be Changed or Cancelled?
Yes. Spousal maintenance arrangements may be changed if circumstances significantly change.
For example, a Court may consider changing or ending maintenance where:
- The recipient’s income increases
- The payer loses employment
- Either party’s financial circumstances change
- The recipient enters a new relationship
A person cannot simply stop making payments without following the correct legal process.
How Does Spousal Maintenance Work With Property Settlement?
Spousal maintenance is often considered alongside property settlement because both involve the financial circumstances of separating couples.
In some cases, parties may resolve property settlement and spousal maintenance together through:
- Consent Orders
- Binding Financial Agreements
- Negotiated agreements
Resolving these issues together can provide certainty and reduce the risk of future disputes.
How to Apply for Spousal Maintenance in Australia
The process usually involves:
1. Obtain legal advice
A family lawyer can assess your circumstances and advise whether you may be entitled to spousal maintenance or whether you may need to respond to a claim.
2. Gather financial information
This may include:
- Income details
- Tax returns
- Bank statements
- Expenses
- Assets and liabilities
3. Attempt to negotiate an agreement
Many matters can be resolved through negotiation without the need for Court proceedings.
4. Apply to the Court if required
If agreement cannot be reached, an application may be made to the Federal Circuit and Family Court of Australia.
Why You Should Get Legal Advice About Spousal Maintenance
Spousal maintenance matters can be complex because they involve detailed assessments of income, expenses, financial resources and future circumstances.
An experienced family lawyer can assist by:
- Advising whether you may be eligible
- Preparing or responding to an application
- Negotiating with your former partner
- Preparing financial evidence
- Representing you in Court if required
- Ensuring agreements are properly documented
Without appropriate advice, you may risk accepting an unfair arrangement or missing important legal deadlines.
How Irvine Lawyers Can Help With Spousal Maintenance Matters
Separation can create uncertainty about your financial future. Understanding your rights and obligations can help you make informed decisions.
The family law team at Irvine Lawyers assists clients with:
- Spousal maintenance applications
- Responses to maintenance claims
- Property settlements
- Divorce and separation advice
- Binding Financial Agreements
- Family law negotiations
Our lawyers provide practical and personalised advice to help you navigate the financial issues that arise after separation.
Frequently Asked Questions
Is everyone entitled to spousal maintenance after separation?
No. A person must demonstrate financial need, and the other party must have the ability to provide support.
How much spousal maintenance will I receive?
There is no set amount. The Court considers income, expenses, financial resources and the circumstances of both parties.
How long does spousal maintenance last?
The duration depends on the circumstances. It may be temporary or continue longer in certain situations.
Can de facto partners claim spousal maintenance?
Yes. Eligible de facto partners may be able to apply for spousal maintenance.
Can spousal maintenance be included in a property settlement?
Yes. Spousal maintenance can sometimes be resolved alongside property settlement through formal agreements.