spousal maintenance

Spousal Maintenance

Sections 74 and 90SE of the Family Law Act 1975 provide the court with jurisdiction to “make such order[s] as it considers proper” – this includes orders for spousal maintenance especially where a disparity exists between the incomes or earning capacities of former spouses.

Orders for spousal maintenance are not lifelong orders, they typically only last for a period of up to three years to enable the disadvantaged party the opportunity to re-establish themselves independently of their former spouse, re-enter the workforce or, if they have had a significant time away from the workforce, the opportunity to re-train.

The main purpose of spousal maintenance orders is to correct the inherent imbalance that is caused when one party has had an extended leave from the workforce to raise the children of the relationship.

When a decision is made for one parent to stay at home this results in the earning capacity of the working party being built up therefore creating an unfair advantage for the party who continued to work. In most cases this imbalance is an accepted feature of the situation and it isn’t until the parties separate that the extent of the disadvantage becomes apparent.

What is taken into account when an application is made?

The first thing that will be taken into account when the court is considering an application for spousal maintenance is whether the court considers that you are unable to adequately provide for yourself.

Section 72 of the Family Law Act 1975 states that “A party to a marriage is liable to maintain the other party …if and only if, that other party is unable to support herself or himself adequately…”

The court will then take into consideration amongst other things:

  •     • The age and state of health of the parties;
  •     • The income, property and financial resources of the parties;
  •     • Whether either party has the care and control of any children under the age of 18 years;
  •     • The commitments of each of the parties that are necessary to support themselves as well as any other child or person they have a duty to maintain;
  •     • The eligibility of either party for government assistance; and
  •     • The need to protect a party who wishes to continue their role as a parent.

These provisions are echoed under section 90SF of the Family Law Act 1975 where an application for spousal maintenance is made with respect to the breakdown of a defacto relationship.

When can an application be made?

If you are looking at seeking an order for spousal maintenance this can be done either at the same time as a claim for property settlement or may be commenced independently.

If a party is in urgent need of financial assistance and it is not practical for the court to determine an order immediately, an application can be made under either section 77 or 90SG of the Family Law Act 1975 for the payment of periodic or lump sum payments as the court considers reasonable.

Time Limitations

There are time limitations in place that restrict how long you have to make an application for spousal maintenance. If you were married to your former spouse, the legislation allows for applications to be made up until 12 months after your divorce has become final.

v For those who were involved in a defacto relationship, such applications are restricted if made more than two years after the date of separation.

What happens if I begin a new relationship?

If you commence a new relationship when considering whether you are able to adequately provide for yourself the court will look at the financial relationship with you and your new partner.

If you choose to marry your new partner this will mean that you will cease to be eligible for spousal maintenance unless the court orders otherwise.

At Adelaide Family Lawyers our family law specialists have extensive experience dealing with applications for spousal maintenance and can discuss with you the approach the court will likely take in determining your eligibility.