Married couples and de facto couples have a legal obligation under the Family Law Act to provide financial support to one another, including in some circumstances following separation. If that financial support is not forthcoming, then either party to a marriage or a de facto relationship is entitled to seek an order that the other party provide such financial support, which is called Spousal Maintenance. Mostly this only becomes an issue following separation.
Requirements for a successful Spousal Maintenance claim include as follows:
- A party must demonstrate that they have “need” and this is done by showing that there is a gap between their weekly income (not including centrelink benefits in most cases) and their reasonable, weekly expenses.
- That the other party has a “capacity” to pay spouse maintenance, because their income exceeds their reasonable expenditure.
Periodic or lump sum Spousal Maintenance
The court may order Periodica Spousal Maintenance. If it does so, most commonly the court will make such an order for a fixed period of time, to allow a party to retrain and re-establish themselves in the workforce. Alternatively the court may order Lump Sum Spousal Maintenance by giving a party a greater share of the assets in the property settlement.
A Spousal Maintenance Order can be negotiated with the other party and formalised as a Consent Order. Often however, it is necessary to make application to the court for a Spousal Maintenance Order.
We can help
It is very important that you obtain legal advice prior to making an application for Spousal Maintenance or defending such an application.