Legal Advice

Spousal Maintenance

In the breakdown of both marriage and de facto relationships, where a party is unable to support themselves and the other party has the capacity to provide financial support, the Court may, in some circumstances, make an order for Spousal Maintenance to accommodate any shortfall a party needs to support themselves. Even if a spouse is eligible for spousal maintenance the Court must assess if the other party has excess funds to facilitate the Order from any income after paying their own reasonable living expenses.

In an application for Spousal Maintenance, the Court may take into account certain matters which include:

  • the age and health of each party;
  • the income, property and financial resources of each party;
  • the physical and mental capacity of each party to engage in employment;
  • whether a party is caring for a child or children of the marriage;
  • the standard of living that is reasonable in the circumstances;
  • whether an order for spousal maintenance would assist in improving earning capacity i.e. education or training could be undertaken;
  • whether the marriage affected a party's earning capacity; and
  • any other matter the Court views as relevant.

An application for spousal maintenance must be made within 12 months of your divorce becoming final. If the application is not made within this time frame you will need to seek the leave of the Court, however this is not always granted.

Property settlement can include a “lump sum” component in respect of spousal maintenance.

Entitlement to spousal maintenance ceases upon one party remarrying, and if a party enters into a de facto relationship the Court will consider this in assessing whether that party is able to adequately provide for their own support.

Prior to 1 March 2009 only those who were married were able to apply for spousal maintenance, however it is now also available to persons in de facto relationships.

Whilst spousal maintenance may be payable by your spouse, you should consider the legal cost of making the application.