Understanding Spousal Maintenance in Australia.
When a marriage or de facto relationship ends, financial concerns often become a significant issue. Many individuals worry about how they will support themselves, particularly if they were financially dependent on their spouse during the relationship. In Australia, spousal maintenance is a legal mechanism designed to provide financial assistance to a former spouse or partner who cannot adequately support themselves after separation.
Under the Family Law Act 1975 (Cth), one party may be required to provide ongoing financial support to their former spouse if they have the capacity to do so and the other party has a genuine financial need. However, not everyone is eligible for spousal maintenance, and various factors determine whether a claim will be successful.
If you’re unsure about your eligibility or obligations when it comes to spousal maintenance, seeking legal advice can help you understand your rights and options. Family law can be complex, but having the right guidance can make the process clearer and less stressful.
Who Can Claim Spousal Maintenance?
The right to claim spousal maintenance is not automatic. Section 72 of the Family Law Act 1975 (Cth) states that a person is entitled to maintenance if:
- They are unable to support themselves adequately due to:
- Having the care of a child under 18 years of age;
- Age, physical, or mental incapacity for employment; or
- Any other sufficient reason.
- The other party has the financial capacity to provide support.
Both married and de facto partners may be entitled to spousal maintenance, though the eligibility criteria differ slightly.
Spousal Maintenance for Married Couples.
A former spouse can apply for maintenance after divorce if they meet the conditions under Section 72 of the Family Law Act 1975 (Cth). Importantly, applications for maintenance must be made within 12 months of a divorce order taking effect. The Family Court or the Federal Circuit and Family Court of Australia (FCFCOA) determines the amount and duration of maintenance based on need and capacity.
Spousal Maintenance for De Facto Relationships.
For de facto partners, spousal maintenance claims fall under Section 90SF(1) of the Family Law Act 1975. To be eligible, the relationship must meet the definition of a de facto relationship under Australian law. Additionally, de facto partners must apply within two years of the relationship breakdown.
A notable case, Bevan & Bevan (1995) FLC 92-600, reaffirmed that the court considers financial dependency and any significant economic disparity between the parties when determining spousal maintenance claims.
Factors Considered in Spousal Maintenance Applications.
When assessing spousal maintenance applications, Australian family courts examine multiple factors, including:
1. Financial Needs and Resources.
The court considers the financial position of both parties, including income, assets, liabilities, and expenses. If one party has significant income while the other struggles to meet basic needs, maintenance may be awarded.
In Hall v Hall (2016) HCA 23, the High Court reaffirmed that spousal maintenance is not about equalising incomes but rather ensuring that a spouse who cannot meet reasonable expenses receives necessary financial assistance.
2. Age and Health of Both Parties.
If the applicant is of advanced age or suffers from a medical condition that limits their ability to work, courts are more likely to award financial support after divorce.
3. Care of Children.
If one spouse is the primary caregiver for young children, their ability to work may be limited, strengthening their claim for spousal maintenance. Courts recognise that full-time parenting can impact earning capacity.
4. Standard of Living During Marriage.
Courts consider the standard of living established during the marriage and whether the dependent spouse can maintain a similar standard post-separation.
5. Length of the Marriage or De Facto Relationship.
Longer marriages typically result in stronger claims for spousal maintenance, especially if one party sacrificed career opportunities to support the household.
6. Financial and Non-Financial Contributions.
Contributions to the marriage, including unpaid domestic work and child-rearing, are factored into spousal support eligibility.
How Does Spousal Maintenance Work?
Types of Spousal Maintenance.
There are three main types of spousal maintenance in Australia:
- Urgent Spousal Maintenance – When a party needs immediate financial assistance, the court may grant an interim order for maintenance under Section 77 of the Family Law Act 1975.
- Periodic Payments – The most common form, where maintenance is paid regularly (e.g., weekly or monthly) for a fixed period or until further order.
- Lump Sum Payments – A one-time payment intended to cover future financial needs, often preferred in cases where ongoing financial disputes may arise.
Factors Considered by the Court.
The Family Law Act 1975 (Cth) outlines several factors that courts consider when determining spousal maintenance claims, including:
- Income and Financial Resources – The court assesses the financial standing of both parties, including their ability to earn income.
- Age and Health – Older individuals or those with medical conditions that prevent them from working may receive higher maintenance.
- Standard of Living During the Relationship – Courts may seek to maintain a similar standard of living for the dependent spouse.
- Childcare Responsibilities – A party caring for a child under 18 may have reduced employment opportunities, justifying maintenance.
- Financial and Non-Financial Contributions – Contributions made during the relationship, such as homemaking or supporting a partner’s career, are considered.
Case law such as Hall v Hall (2016) HCA 23 illustrates that financial dependency and hardship play a significant role in maintenance orders.
How Long Does Spousal Maintenance Last?
The duration of spousal maintenance varies based on individual circumstances. In many cases, maintenance is awarded for a fixed period to allow the recipient time to become financially independent. However, in situations where the recipient cannot support themselves permanently, maintenance may be extended.
Maintenance orders generally cease under the following conditions:
- The recipient remarries, as per Section 82(4) of the Family Law Act 1975.
- The recipient enters a new de facto relationship (though this does not automatically terminate payments).
- The financial circumstances of either party change significantly, warranting a variation or termination of the order.
A significant case, Graham & Squibb (2009) FamCA 429, highlighted that courts can reassess maintenance obligations if either party’s financial situation changes drastically.
How to Apply for Spousal Maintenance.
To apply for spousal maintenance, an individual must file an Initiating Application with the Federal Circuit and Family Court of Australia (FCFCOA). Supporting documents, such as financial statements, must be provided to demonstrate the need for maintenance.
The court process typically involves the following steps:
- Filing the Application – The applicant submits an application specifying the type of maintenance sought.
- Financial Disclosure – Both parties must provide full disclosure of their financial positions.
- Negotiation and Mediation – The court may encourage parties to reach an agreement through mediation.
- Court Hearing (if necessary) – If no agreement is reached, the court will make a decision based on the evidence presented.
Legal representation is recommended to ensure a strong claim for spousal maintenance. In cases of financial hardship, legal aid for divorce may be available.
Conclusion: Understanding Your Rights and Obligations.
Spousal maintenance plays a crucial role in ensuring financial fairness after separation. Whether you are seeking divorce financial help or trying to protect your assets, understanding the legal principles behind spousal maintenance is essential.
Given the complexities involved, consulting a family lawer can help navigate your rights and obligations. If you are considering applying for spousal maintenance, it is advisable to seek legal aid for divorce or obtain legal advice to ensure a fair outcome.
