What is spousal maintenance?
‘Alimony’ may be a term you are familiar with, and we can probably attribute that to day-time American TV dramas. We have a similar concept in Australia, but in this jurisdiction, it’s called spousal maintenance.
Spousal maintenance is payment made by one ex-spouse to another. Essentially, where one ex-spouse is unable to provide for himself or herself after separation, the other spouse may have to make reasonable contributions to their needs. Although spousal maintenance is a very broad concept, its purpose is to provide for the basic living needs of a former spouse.
Below I have outlined FAQs regarding spousal maintenance; some food for thought if you are wanting to apply for spousal maintenance, or if you are thinking that you may be obliged to pay spousal maintenance.
Who can apply for spousal maintenance?
You don’t have to have been married to receive spousal maintenance. While those who were married, but are now separated or divorced can apply, so can spouses of de facto relationships. Although, if you want to claim spousal maintenance from a former de facto partner (including a same sex de facto partner), you have to prove one of the following:
- Your relationship lasted for more than 2 years; or
- You have a child with your former de facto partner; or
- Either you or your former de facto partner made significant financial contributions to the property of the other; or
- Your de facto relationship was registered (at Registry of Births, Deaths and Marriages or an interstate/overseas equivalent).
What are the time limits for making a spousal maintenance application?
If you were married, and are now divorced, you have 12 months from the date of divorce to apply for spousal maintenance. Similarly, if you were formerly in a de facto relationship, you have two years form the date of separation to apply for spousal maintenance. If you were married and are now separated, but are yet to be divorced, you are not restricted by time limits and are at liberty to apply for spousal maintenance at any time.
How can you get spousal maintenance?
In practice, there are two ways that you can receive spousal maintenance:
- Private agreement between you and your former partner; or
- Court ordered spousal maintenance.
If you and your former partner can reach agreement about maintenance (how much, how often and how it will be paid) you can enter into a private agreement. This can be ‘formalised’ by entering into a Binding Financial Agreement or Consent Orders filed with and approved by the Court.
If you are unable to reach agreement, you can make an application to the Federal Circuit Court or Family Court seeking spousal maintenance payments.
What do I need to prove to receive spousal maintenance?
Under the Family Law Act, you have to prove two things:
- You are unable to support yourself adequately; and
- Your former spouse is reasonably able to support you.
Broadly speaking, the court will explore whether you are able to financially support yourself from your own resources. With that being said, the Court will not expect you to exhaust all your resources before you can apply for spousal maintenance. For example, modest savings in your bank account will not bar you from making an application for spousal maintenance.
In determining an application for spousal maintenance, and the quantum, the Court will also turn its mind to factors such as:
- The age and health of you and your former spouse;
- The income, property and financial resources of you and your former spouse;
- Which, if either, has the care or control of the child(ren);
- Child support arrangements (remembering that child support payments are different to spousal maintenance payments); and
- A standard of living that is reasonable.
How is spousal maintenance paid?
Spousal maintenance can be paid on a temporary basis or a final basis. You may find, for example, that you only need financial support (maintenance) until your property settlement is finalised. In such a case, you could apply for maintenance on a temporary basis until the assets of your relationship have been split and finalised. Spousal maintenance can be paid in one lump sum, or periodically (weekly, fortnightly, monthly or yearly).
Spousal maintenance does not always manifest as monetary payments. Although it often does, it is important to note that maintenance can paid in other ways such as by the transfer of a motor vehicle or investment property.
When do spousal maintenance payments end?
There is no hard and fast rule about when spousal maintenance payments will end. Payments can cease at a pre-determined time, where one party remarries, if there is a change in financial circumstances (e.g. a new job) or upon the death of either spouse.
If you would like further advice, feel free to make contact with me at Kate.Graham@bgm.legal.