4 Jan 2016

Spousal maintenance is when one person provides ongoing financial support for their former partner.  In certain circumstances, a spouse may have to provide financial support to the other spouse if their marriage or de facto relationship breaks down. The Family Court can order one party to pay “spousal maintenance” to the other if:

1. One spouse (the applicant) cannot adequately meet his or her own reasonable needs; and

2. The other spouse (the respondent) has the capacity to pay.

In relation to the first point, spousal maintenance may be ordered where one party, usually the woman, is “house bound” with the care of young children and therefore unable to exercise her income earning capacity.  In these cases, the mother may have stopped working after giving birth for a significant period of time to parent the children and has become de-skilled or unemployable due to age.  Another example would be if one party was unable to work due to illness. These situations result in a disparity of income earning capacities between the parties.

 

In relation to the second point, a party’s income earning capacity is a separate concept from a party’s income.  Sometimes a party will unilaterally reduce their income in an attempt to avoid spousal maintenance obligations.  In such instances, the party will be deemed to earn a higher income because of their income earning capacity.  A party must exercise their income earning capacity to its full extent.

 

In deciding the appropriate amount of spousal maintenance payable, the Court will consider what constitutes a reasonable standard of living in the circumstances.  A “reasonable standard of living” does not necessarily mean the standard of living which the applicant enjoyed before the relationship ended.

The spousal maintenance payments can occur periodically or by way of a lump sum payment.  The spousal maintenance can also take the form of a right to use property such as a house or a car.

Spousal maintenance is generally intended to be paid for only for a short duration after separation to enable an applicant to get back on their feet.  However, in certain circumstances it may be appropriate that spousal maintenance be paid for a longer period of time.  Where spousal maintenance is paid over a longer duration, the Court may order that the payment of spousal maintenance ceases upon the occurrence of a specific event.  For example, the person receiving maintenance completing training or re-skilling, securing employment or commencing a new de facto relationship.

Note that spousal maintenance is not the same thing as child support.  Child support is paid for the benefit of children and is a separate payment. The Family Court can order a party to pay spousal maintenance in addition to any child support they may be obligated to pay.

As with all Family Law matters, we recommend that you receive detailed advice specific to your circumstances about your liability to pay or your entitlement to receive spousal maintenance.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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