Understanding Spousal and De Facto Maintenance

A spouse or de facto partner can apply for financial support from the other party after separation. Where the application succeeds, the other partner is liable to pay what is known as spousal or de facto partner maintenance. Its purpose is to provide for a partner who cannot adequately support themselves as a result of the separation. Maintenance is separate from child support and from the division of property, although the court often considers them together. 

When is a party liable to pay spousal maintenance? 

A party may be liable in two situations: 

• When the applicant cannot support themselves for an adequate reason. This includes, but is not limited to, having care of children of the relationship under 18 years old, or not being gainfully employed due to age or physical or mental incapacity. 
• When the liable party has the capacity to pay maintenance. 

In other words, where the reasonable expenses of the applicant exceed their reasonable income, leaving a deficit, and the reasonable income of the liable party exceeds their reasonable expenses, leaving a surplus. 

How the court assesses a claim 

Spousal maintenance is not granted automatically. Both partners are expected to support themselves to the best of their ability after separation, and an order is made only where it is needed for a fair and reasonable outcome. The court weighs the income, assets and financial resources of each partner, their age and health, and the standard of living enjoyed during the relationship. For a higher-income earner, capacity to pay is assessed on more than salary alone: property, financial resources and earning capacity all count. The amount ordered can also be affected by the division of property and any child support arrangements in place. 

‘Reasonable expenses’ does not mean a survival level. Where possible, parties should live to the standard enjoyed during the relationship, allowing for the fact that there are now two households to fund. The Family Court has previously found that the primary carer of school-aged children could obtain part-time employment, and that a party out of the workforce without qualifications could obtain retail or administrative work. 

Temporary or permanent, and by agreement 

Maintenance can be ordered on a temporary or permanent basis. Temporary maintenance is usually paid for a set period, for example until the property settlement is finalised or the recipient can support themselves. Permanent maintenance may be ordered where the recipient is unlikely to support themselves in future, for example due to age, ill-health or caring responsibilities. Partners can also agree to a private arrangement without going to court, which can be reviewed and varied as circumstances change. 

Time limits to apply 

If you were married, you have 12 months from the date of your divorce order to file an application. If you were in a de facto relationship, the application must be filed within two years of the separation date. 

If maintenance is likely to be an issue in your separation, get clear advice early. Contact us with the specialist family lawyers at Leach Legal to understand where you stand.