Spousal maintenance is financial support paid by one party to a marriage or de facto relationship to the other in circumstances where they are unable to adequately support themselves.
If a person cannot meet their own reasonable expenses from their own income, then the other party has a duty to support and maintain them if they can afford to do so.
The following circumstances give rise to spousal maintenance:
- Having care and control of a child of the relationship;
- Being incapable (by age, physical or mental incapacity) to gain appropriate employment;
- For any other adequate reason, having regard to relevant factors in sections 72(2) of the Family Law Act 1975 (Cth) (for married couples) or section 205ZD(3) of the Family Court Act 1997 (WA) (for de facto couples).
The payments received as spousal maintenance may be periodic (for example, $200 per week) or lump sum (for example, a one-off payment of $20,000), or a combination of both.
Spousal maintenance is generally calculated by determining what the shortfall in the applicant’s financial circumstances is, being their total expenses less their total income. Parties may also require lump-sum payments to meet the costs of medical procedures or education costs.
Time limits
If you were married, then you must make an application for spousal maintenance within 12 months of the divorce becoming final.
If you were in a de facto relationship, then you must make an application for spousal maintenance within 2 years of the relationship breaking down.
If you apply for spousal maintenance outside of these time limits, you will require leave of the Court which will only be granted in limited circumstances.
If you have previously had an order for spousal maintenance, then the time limits do not apply.
Urgent spousal maintenance
Pursuant to section 77 of the Family Law Act (1975 (Cth) and section 205ZE of the Family Court Act 1997 (WA), parties may apply to the Court for an urgent spousal maintenance application if they are in immediate need of financial assistance. Any orders made, usually at the first Court hearing, are likely to be in place only until each party has had the opportunity to put forward their evidence.
When the need for spousal maintenance is urgent, the Court is authorised to make orders on the evidence available to them in the absence of the other party (known as ex parte).
While government benefits and pensions are usually not included as income for the purposes of spousal maintenance or property proceedings in general, the Court may consider them in the evaluation of immediate need for urgent spousal maintenance applications.
Urgent spousal maintenance – Case Study
Hayson & Hayson (1987)
- In this case, the Wife applied for spousal maintenance to assist her in paying for a lease agreement that she had entered into and could not afford, so that she could be closer to the Husband’s residence and have the children stay with her overnight. The Husband had been making adequate spousal maintenance payments voluntarily.
- The Court held that this was not an immediate need to justify her application for urgent financial assistance.
Milano & Nolan (2018)
- In this case, the Court held that there was insufficient evidence to support weekly spousal maintenance as the Applicant received Centrelink payments.
- The Court did award lump-sum payments to assist the Applicant with urgent medical procedures and bills.
Interim Spousal Maintenance
An application for interim maintenance is the same as an application for final or permanent maintenance except that the order is made only until further order or for a specified amount of time. This is particularly important if the Court is experiencing delays and a party may require interim funding to meet their reasonable expenses or legal fees.
The Court will not make orders for interim spousal maintenance without hearing the evidence of both parties.
Factors considered by the Court
Pursuant to sections 72(2) of the Family Law Act 1975 (Cth) (for married couples) or section 205ZD(3) of the Family Court Act 1997 (WA) (for de facto couples), the Court will consider the following factors in determining whether to make an order for spousal maintenance:
a) The age and state of health of each of the parties;
b) The income, property, and financial resources of each of the parties (For the purpose of assessing a person’s income, The Court must ignore any pension or Centrelink payments received by the person seeking maintenance but will otherwise take into account the income a person receives through employment, investments or other sources of income);
c) The respective physical and mental capacities of the parties for gainful employment;
d) Which party has primary care of any children under the age of 18;
e) The commitments of each of the parties which are necessary to enable that party to support themselves, any child, or any third party that person has a duty to maintain;
f) The eligibility of either party for a pension, allowance, or benefit;
g) A standard of living that in all the circumstances is reasonable;
h) Whether receipt of maintenance will increase the recipient’s earning capacity;
i) The extent to which the proposed recipient of maintenance has contributed to the income-earning capacity, property, and financial resources of the other party;
j) The duration of the marriage/relationship and its effect on the claimant’s earning capacity;
k) The rights of any creditors;
l) The need to protect a party who wishes to continue that party’s role as a parent;
m) Whether either party is cohabitating with another person and, if so, the financial circumstances relating to that cohabitation;
n) The terms of any property settlement orders or binding financial agreement that may have been effected between the parties;
o) The extent of any child support being paid; and
p) Any other fact or circumstance which, in the Court’s opinion, the justice of the case requires to be taken into account.
Interim Spousal Maintenance – Case Study
Molloy & Molloy (2020)
- The Court made interim spousal maintenance orders by consent for the Husband to pay to the Wife the sum of $2,650 per week.
- The Husband later filed an application to vary the orders, alleging he had been pressured by his lawyers and his financial circumstances had changed. The Husband had lodged a previous application to vary the interim spousal maintenance orders which had been unsuccessful, and he had not mentioned any pressure from his lawyers in those applications.
- The Court dismissed the Husband’s application, as they were not satisfied he had demonstrated a just cause to discharge the interim orders (as he did not present specific evidence on how he was unduly pressured by his lawyers or how his financial circumstances had changed in any material way).
Gamage & Gamage (2017)
- The Wife sought urgent and interim spousal maintenance from the Husband.
- The Wife’s application for urgent spousal maintenance was dismissed as she had $11,259 in her bank account.
- In considering the Wife’s application for interim spousal maintenance,the Court found:
- The Wife was unable to adequately support herself (despite the Husband asserting the Wife was not exploiting her earning capacity as she was working part-time due to commitments as primary carer for the children).
- On the Wife’s evidence, the Court assessed her needs to be $163 per week, which was the difference between her weekly expenditure and her income.
- The Court, upon reviewing the Husband’s financial statement, noticed the overlap of some listed expenditures, some of which were paid by the Wife, and some which were overstated.
- The Court was satisfied that the Husband had the capacity to pay to the Wife $163 per week and also continue to pay the mortgage, insurance, and outgoings related to the former matrimonial home.
If you would like more information in relation to spousal maintenance, contact us on (08) 9443 1111 to make an appointment with one of our experienced family law solicitors.
