Spousal Maintenance Explained: Who Pays and For How Long?

Co-Authored by Angelina Romeo

KEY TAKE-AWAYS

• Spousal maintenance is financial support paid by one former partner when the other cannot meet their reasonable living expenses with their own financial income and resources.
• Eligibility to receive payments and capacity to make payments depends on a range of factors and is assessed on a case-by-case basis.
• Payments are usually time-limited but may continue in certain circumstances.

Spousal maintenance is financial support provided by one former spouse or de facto partner to the other, following separation or divorce. It is an area of family law that can be quite confusing, particularly around when it applies, how much must be paid and how long it lasts.

It is important to note at the outset that each matter is determined on its own facts and circumstances, considering the financial positions of both parties.

What is Spousal Maintenance?

Under section 72 of the Family Law Act 1975, a party to a marriage is liable to maintain the other party, to the extent that they are reasonably able to do so, and only if the other party is unable to support themselves adequately. Put simply, spousal maintenance is a legal obligation for one spouse or de facto partner to provide financial support to the other when they cannot meet their reasonable living expenses from their own income or resources.

Who is eligible to receive Spousal Maintenance?

Under section 72 of the Family Law Act 1975, a person may be eligible to receive spousal maintenance if they are unable to adequately support themselves due to factors such as:

1. Caring for a child of the marriage who is under the age of 18,

2. Being unable to work due to age, illness or physical or mental incapacity, or

3. Any other adequate reason affecting their earning capacity.

Who may be required to pay Spousal Maintenance?

Importantly, either spouse may be eligible to pay spousal maintenance, not just the party with higher income or earning capacity. In accordance with section 75 of the Family Law Act 1975, the Court should take a variety of factors into consideration when determining spousal maintenance. The list below is not exhaustive but relevant circumstances may include:

1. The effect of any family violence,
2. The age and state of health of each of the parties,
3. The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment,
4. Other caring responsibilities that either party may have,
5. The eligibility of either party for a pension, allowance or benefit,
6. Whether the party whose maintenance is in question has a reasonable standard of living,
7. The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is in question, and
8. Any child support that the other party has provided, is providing or might be liable to provide for a child of the marriage.

How much maintenance is someone entitled to?

There is no set formula for calculating spousal maintenance.

Generally, to determine the amount, the Court will consider:

1. Whether one party has a genuine financial need, and
2. Whether the other party has capacity to pay after meeting their own living expenses, along with the factors outlined in the section above.

Ultimately, spousal maintenance is calculated on a case-by-case basis, so the amount payable can vary significantly between different situations.

How long does Spousal Maintenance last?

Spousal maintenance is often temporary. It is commonly ordered for a defined period to allow the receiving party to stabilise their financial position, whether by re-entering the workforce, remarrying or children of the marriage turning 18.

Spousal maintenance can cease for a variety of reasons. For example, in accordance with s 82 of the Family Law Act 1975, a spousal maintenance order may cease to have effect if one of the parties passes away or if the party receiving the payments remarries.

However, there may be circumstances where spousal maintenance can continue beyond these circumstances. For example, under s 82(3) of the Family Law Act 1975, if a spousal maintenance order expressly states that it continues for the lifetime of the party receiving the payments, the order may be binding on the estate of the paying person.

In the end…

Spousal maintenance can play a crucial role in ensuring financial fairness after a relationship breakdown, but whether you may be required to pay or entitled to receive it depends on your individual circumstances.

At Coutts Lawyers & Conveyancers, we can provide you with the legal advice to help you understand your rights, obligations and options moving forward.

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ABOUT LUISA GAETANI:

Luisa is a distinguished Partner and Accredited Family Law Specialist at Coutts who proudly leads our esteemed Family Law team. Luisa started University in 2010 and commenced as a Paralegal, and since her admission in 2014, Luisa has dedicated her practice exclusively to Family & Criminal Law, showcasing a deep commitment to providing comprehensive legal support.

Her unique blend of sensitivity and practicality sets Luisa apart, allowing her to forge a strong rapport and cultivate trust with her clients.

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For further information please don’t hesitate to contact:

Luisa Gaetani
Partner
Accredited Specialist in Family Law
info@couttslegal.com.au
1300 268 887

Contact our Coutts Lawyers today.

This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.