- within Family and Matrimonial topic(s)
- with Senior Company Executives, HR and Finance and Tax Executives
- in United States
- with readers working within the Accounting & Consultancy, Business & Consumer Services and Metals & Mining industries
Key Takeaways:
- Spousal maintenance or spousal support in Australia is similar in concept to alimony in America. Alimony is an American legal term and is not used in Australia.
- There is no set amount of how much a spousal maintenance payment is, instead it is dependent on the individual circumstances of the people involved in each case.
- You can be eligible for spousal maintenance, even if you were not married. This is known as de facto maintenance.
- Spousal maintenance isn't automatically guaranteed, it needs to be applied for.
- You don't need a lawyer to apply for spousal maintenance, however, engaging a family lawyer can make the process easier and potentially more fruitful for you.
Spousal maintenance is a type of financial support paid by one spouse to another in Australia.
While it's a type of support available, there is a lot of confusion around who is eligible for it and how you actually apply for spousal maintenance.
To help clear up any confusion, we've answered some of the most common questions we're asked about spouse maintenance in Australia at our family law firm.
If you would like to learn more about spousal maintenance and how it works in Australia, keep reading.
What is spousal maintenance?
Sometimes referred to as spousal support, spousal maintenance is financial support that is paid by one spouse to another when the spouse who is receiving the payment is unable to adequately support themselves.
Usually, this payment is a court-ordered ongoing payment that is made after the breakdown of a relationship.
It is possible for a person to apply for and receive spousal maintenance during the relationship, though this is not a common occurrence.
Many factors need to be considered to determine whether someone is eligible for spousal maintenance, as well as to determine how much the payments will be.
It's also important to understand that spousal maintenance is not the same thing as child support payments or a property settlement, though they are related.
You may also be familiar with the American term "alimony" which is a type of payment made by one spouse to another after their relationship has ended.
While it is a similar concept to spousal maintenance, they are not the same, and alimony is not a term used in Australian legislation.
Who is eligible for spousal maintenance?
If an application for spousal maintenance is to be made, it must be established that the person making the application is unable to support themselves adequately and that the other party is reasonably able to.
Some of the reasons that someone may be unable to adequately support themselves include:
- They have to care for a child (usually of the relationship) that is under 18 years of age, and this impacts their earning capacity;
- They are too old or have a physical or mental incapacity that prevents them from being able to support themselves.
The meaning of the word adequate does not have one static meaning in this context and it doesn't mean that the spouse receiving the spousal maintenance payment only gets enough money just to get by or that the spouse required to make the payment will do so at their own detriment.
The court must work out what is reasonable and adequate based on the unique circumstances of each application, and this should be based on factors like :
- The age and health of the parties;
- Income and earning capacity;
- Property and financial resources of each party;
- What is a reasonable standard of living based on their circumstances;
- What are reasonable expenses for their circumstances;
- The length of the relationship and the impact this may have had on the earning capabilities of either party.
Is spousal maintenance only for couples who have been married?
No, spousal maintenance can also be applied for by someone who was or still is in a de facto relationship.
This is called "de facto maintenance" however, besides a difference in the time limit a person has to make an application for "maintenance" (which we will discuss later), the concepts are the same.
As we mentioned above, the marriage or relationship may not necessarily have to have ended in order to apply for spousal maintenance. According to the Family Law Act 1975 (Cth.), a spouse must "maintain" their spouse if they are unable to support themselves adequately, to the extent that the spouse is reasonably able to provide support. This can mean that the couple is still married and together.
Is spousal maintenance automatic or guaranteed?
Spousal maintenance is not automatic, nor is it guaranteed.
An application for this type of support must be made to the Federal Circuit and Family Court of Australia, however, not every person who has been married or in a de facto relationship is eligible to obtain spousal maintenance.
While it's not an automatic payment, it is possible for former spouses to privately agree to provide support to one another.
How do you calculate spousal maintenance amount?
There is a wide range of factors that need to be considered when working out how much spousal maintenance payments may be.
The factors we listed above to determine what is reasonable and adequate are some of these factors to be considered, as well as :
- Child caring responsibilities;
- Eligibility for support payments from Centrelink;
- Whether either party is in a new relationship, including marriage and de facto relationships;
- Whether any other agreements, like a binding financial agreement or the division of assets exist;
- Whether child support payments exist and the amount of them;
- The expenses of each person;
- What is considered a reasonable standard of living for each party;
- The respondent's ability to actually provide any type of financial support.
These are only some of the factors that could impact how much these financial support payments could be.
When determining the spousal maintenance payable, the court uses these factors to essentially work out if support is required and if it's possible for the other spouse to provide this support.
How do you apply for spousal maintenance?
The application for spousal maintenance must be made to the Federal Circuit and Family Court of Australia.
These applications are commonly made at the same time as other applications you may make when you separate, such as child support, parenting arrangements or property settlement matters.
1. Prepare your application :
Complete the Initiating Application form and any other required forms for spousal maintenance.
2. Gather supporting documents :
Include a Financial Statement outlining your income, expenses, assets and liabilities, plus an Affidavit explaining your situation and why maintenance is needed.
3. Submit the application to the court :
Lodge your forms and supporting documents with the Federal Circuit and Family Court of Australia (online via the Commonwealth Courts Portal or in person).
4. Serve the documents :
Ensure your former spouse is formally served with the application according to the court's rules so they have a chance to respond.
5. Wait for a response or agreement :
Your former spouse can agree, negotiate an alternative arrangement, or contest the application in court.
6. Consent orders (optional) :
If you and your former spouse agree on terms, you can apply for spousal maintenance orders by consent instead of having the court decide after a contested process.
Learn more about consent orders here.
7. Legal advice recommended :You can apply for spousal maintenance without a lawyer, however, given the complexity of family law and how the unique factors of your own circumstances may impact your application, including the outcome, we highly suggest that you seek legal advice from a spousal maintenance lawyer before submitting an application.
Can the amount of spousal maintenance ever change?
Yes, it's possible for the spousal maintenance payment amount to change over time however, unless the former couple have their own private agreement, these changes will not occur without an application to vary the order being made to the court.
In order for the court to change the order, there will need to have been a material change which is essentially a significant change in circumstances. Some of these changes could include :
- A party remarries or enters into a new de facto relationship;
- A party's income changes significantly, such as a pay decrease, pay rise, or loss of job;
- If the child caring responsibilities change;
- A party experiences health problems that affects their earning ability.
Before making an application to change an order, it's a good idea to speak to a lawyer
Are there any time limits when it comes to applying for spousal maintenance?
There are a few different time limits when it comes to applying for maintenance, and they are dependent on your circumstances.
These time limits are:
- If you're married but not yet divorced, you can apply for spousal maintenance at any time.
- If you're married and not planning on divorcing or separating, you can apply for spousal maintenance at any time.
- If you're already divorced, you have 12 months from when the divorce order was made to apply for spousal maintenance.
- If you were in a de facto relationship and have separated, you have 2 years (24 months) from the date your relationship ended, to apply for de facto maintenance.
If you miss any of these time limits, it is possible that the court may grant a party leave that will allow them to apply for the maintenance, however, this is only in limited circumstances, such as if significant hardship may be caused to the party if they do not have the maintenance.
If each party agrees, a consent order application for spousal maintenance can be made after the time limit has lapsed.
If you and your former partner are able to come to an agreement, it is highly suggested that this agreement is formalised to ensure that it remains in place.
What happens if my partner doesn't pay?
If your partner doesn't pay their spousal maintenance when a court order or formal agreement is in place, there are legal steps you can take to enforce the obligation, because non-payment is a breach of that order.
You can apply back to the Federal Circuit and Family Court of Australia to enforce the order, and the Court has a range of enforcement powers, such as ordering wage garnishment, seizure of assets, or other measures to recover the unpaid amounts.
The Court can also conduct an enforcement hearing where your former partner may be required to explain their financial situation and answer questions about why they have not paid.
In serious cases of ongoing non-compliance, the Court can impose further penalties, including fines or other consequences for contempt of court, to ensure the maintenance obligation is fulfilled.
How long does it take to get spousal maintenance?
Unfortunately, it's not possible to provide an exact time frame of how long an application for spousal maintenance payments will take and for you to start receiving payments.
This is because there are many variables affecting the process.
For example, if you and your former partner are in a dispute, particularly over the spousal maintenance application, this could see the process be drawn out and take months to years to be resolved.
If you and your former partner can come to an agreement and apply for consent orders, this process may take a while but not as long as litigation usually takes.
If you work with a lawyer, they will be able to ensure that your application is correct and reasonable, which can make the process take less time too.
In circumstances where the person making the application is in a dire financial situation, it is possible to ask the court for an urgent hearing which can speed up the process
How long do spousal maintenance payments last?
The length of time that you may be required to pay spousal maintenance or be eligible to receive spousal maintenance will vary based on your circumstances and unfortunately an exact time frame cannot be given.
Spousal maintenance is rarely permanent as the eligibility of the receiver may change over time and sometimes the initial order may include an end date for the support.
Some of the reasons as to why spousal maintenance may end include :
Change in income earnings of either party;
- If either party dies;
- If either party remarries; or
- If either party enters into a new de factor relationship.
The court will consider the financial circumstances of each party before making any changes.
Do you need a lawyer to apply for spousal maintenance payments?
No, like many processes in the Australian Family Law system, a lawyer is not required to make the application.
However, while they are not required, it is highly recommended that you work with a lawyer for many of the family law processes, like parenting matters, divorce and separation, or financial and property matters.
As we mentioned earlier, the Australian family law system is complex, and many factors can impact the outcome of applications you make. It's also very easy to misunderstand or not realise how significant aspects of your situation may be.
By choosing to work with a family lawyer, you could save yourself time and money, and ensure that your application is accurate and has been made with their experience and knowledge guiding you.
Usually, an application for spousal maintenance is being made when a relationship has ended and you're going through a lot of changes.
These changes can impact your thought processes and decision-making capabilities.
A family lawyer can help you to understand the effects of each decision and help you to understand the bigger picture.
At Unified Lawyers, we're one of Australia's leading family law firms.
We work closely with you to understand your unique situation and ensure that we can help you understand your responsibilities and all of your options.
It's our goal to help you make informed decisions so you can achieve the best outcome possible.
We have offices located in Brisbane, Melbourne and Sydney, and can help people Australia-wide. Just call us on 1800 572 131 or use the button below to book your free consultation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
