Spousal maintenance refers to financial support that one spouse may be required to pay to the other, either during a marriage or after separation and divorce, in situations where the recipient cannot adequately support themselves.
Under section 72(1) of the Family Law Act 1975, a person has a duty to provide financial assistance to their spouse or former de facto partner if that person is unable to meet their reasonable living expenses from their own income or assets.
Where such a need exists, both parties share an equal obligation to support and maintain each other to the extent that they are able. This obligation may continue beyond separation and divorce, with the level of support depending on what the other party can reasonably afford.
When considering an application for spousal maintenance, the Court examines both the applicant’s financial needs and the respondent’s capacity to pay.
Section 75 (2) of the Family Law Act 1975 sets out the matters the Court must take into account, including:
- duration of the marriage;
- the age and health of each party;
- commitment to each party;
- each party’s income, property, and financial resources;
- each party’s capacity for employment;
- whether a party has care of a child of the relationship, including the need to provide appropriate housing for the child;
- the impact of any family violence;
- the standard of living that is reasonable in the circumstances;
- the extent to which the marriage has affected a party’s ability to earn an income.
The Court also considers with whom the children live, including children under 18 years of age and adult children with a disability.
Importantly, entitlement to maintenance generally ceases if the recipient remarries, unless the Court makes an order to the contrary, as reflected in section 82(2) of the Family Law Act 1975.
Three types of application for spousal maintenance:
- urgent maintenance;
- Interim orders for maintenance;
- final orders for maintenance.
Urgent maintenance was refused in Grieves & Grieves [2011] FMCAfam 125 where the applicant had bank savings of $17,300.
An interim maintenance application in Wicklow [2007] FamCA 792 was granted to the wife in the amount of $4,264 per month regardless of the fact that the wife owned shares in her name worth $110,000 and had 2.5 days working capacity. The husband alleged no capacity to pay but was found to have earning capacity of up to $300,000 per annum. The assessment was made on a broad brush approach, which explains why the wife’s shareholding did not prevent an order being made.
You may apply to the Court for an order for spousal maintenance even if you are not divorced. The Court can make such an order while the marriage is still ongoing, even where the parties are not separated, although this is uncommon and may arise in the circumstances of financial abuse.
It is also possible to seek spousal maintenance after divorce; however, an application must be filed within 12 months of the divorce order taking effect unless leave is sought. For de facto couples, the time limit is 2 years from separation. If you wish to commence proceedings outside of this period, please book a conference with one of our lawyers who can advise you in that regard.
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