Spousal Maintenance Lawyers Melbourne
When a marriage or de facto relationship ends, one party may find themselves unable to meet their own reasonable financial needs, while the other party has the capacity to provide support. This is where spousal maintenance comes into play. At Kelly & McHale Family Lawyers, we provide clear and practical advice on your rights and obligations regarding spousal maintenance, whether you are seeking support or may be required to provide it.
What is Spousal Maintenance?
Spousal maintenance is financial support paid by one former spouse or partner to the other when the recipient cannot adequately support themselves. It’s important to understand that:
- It’s not automatic: There’s no automatic entitlement to spousal maintenance upon separation.
- It applies to marriages and de facto relationships: The obligation to support a former partner can arise whether you were married or in a de facto relationship (including same-sex relationships).
- It’s distinct from child support and property settlement: While often considered alongside these matters, spousal maintenance addresses the direct financial needs of a former partner, not the children or the division of assets. However, the outcome of a property settlement can impact the need for spousal maintenance.
The Threshold Test: Need vs. Capacity
For a court to make a spousal maintenance order, two key conditions must generally be met:
- Need: The applicant (the person seeking maintenance) must demonstrate that they are unable to support themselves adequately from their own personal income or assets. This inability can arise from various factors, such as having the care of young children, age, physical or mental incapacity for employment, or lacking skills or qualifications to readily find employment.
- Capacity: The respondent (the person from whom maintenance is sought) must have the financial capacity to support the other party, after meeting their own reasonable living expenses and financial commitments.
Factors the Court Considers
If the threshold test is met, the Court will then consider a range of factors to determine whether maintenance should be paid, for how long, and in what amount. These factors are set out in the Family Law Act 1975 (primarily Section 75(2) for married couples and Section 90SF(3) for de facto couples, which are very similar) and include:The age and health of both parties.
The income, property, and financial resources of both parties.
The ability of each party to work.
What is a suitable standard of living for each party.
Whether the marriage or de facto relationship has affected a party’s ability to earn an income (e.g., one party stayed home to care for children and thus has limited recent work experience).
The extent to which the party seeking maintenance has contributed to the income, earning capacity, property, and financial resources of the other party.
The responsibility of either party to support any other person (e.g., children).
The duration of the relationship and the extent to which it has affected the earning capacity of the applicant.
The need to protect a party who wishes to continue their role as a parent.
If either party is cohabiting with another person, the financial circumstances relating to that cohabitation.
Any child support that is being paid.
Forms of Spousal Maintenance
Spousal maintenance can be paid in various ways:
- Periodic Payments: Regular payments (e.g., weekly, fortnightly, or monthly) for a specific or indefinite period.
- Lump-Sum Payment: A one-off payment, which can provide a clean break.
- Payment of Specific Expenses: Such as rent, mortgage payments, health insurance, or car expenses.
Time Limits for Applications
Strict time limits apply for making spousal maintenance applications to the Court:
- Married Couples: Applications must be made within 12 months of your Divorce Order becoming final.
- De Facto Couples: Applications must be made within 2 years of the breakdown of the de facto relationship (i.e., the date of separation).
If you need to apply outside these time limits, you will require special permission from the Court, which is only granted in limited circumstances. It is crucial to seek legal advice promptly.
How Kelly & McHale Family Lawyers Can Assist
Navigating spousal maintenance matters requires careful consideration of your individual circumstances. Our experienced family lawyers can:
Advise you on your rights and obligations regarding spousal maintenance.
Help you determine whether you meet the threshold test for spousal maintenance.
Assist in gathering the necessary financial information and evidence to support your case.
Negotiate with your former partner to reach an agreement on spousal maintenance.
Draft formal agreements or Consent Orders regarding spousal maintenance.
Represent you in Court proceedings if an agreement cannot be reached or if an application needs to be made or responded to.
Advise on how spousal maintenance interacts with property settlement and child support matters.
We aim to provide you with realistic advice and effective representation to achieve a fair and appropriate outcome.
Frequently Asked Questions (FAQs) about Spousal Maintenance
Here are some common questions regarding spousal maintenance in Australia.
How long does spousal maintenance last?
There’s no set period. Spousal maintenance can be ordered for a short, fixed term (to allow a person to retrain or re-enter the workforce, for example), a longer term, or in some rare cases, indefinitely. The duration depends on the specific circumstances of the parties, particularly the recipient’s ability to become self-supporting and the payer’s ongoing capacity.
To help us advise you: What are your current employment circumstances and those of your former partner? Are there young children requiring care?
If I start a new relationship, will it affect my spousal maintenance?
Yes, potentially. If you are receiving spousal maintenance and you marry someone else, your entitlement to spousal maintenance generally ceases. If you enter into a new de facto relationship, the Court will consider the financial circumstances of that new relationship when determining whether maintenance should continue or be varied. Similarly, if a paying party enters a new relationship, their financial capacity might be reassessed.
To help us advise you: Have you or your former partner entered into a new relationship since separation?
Can we agree on spousal maintenance without going to Court?
Yes, you and your former partner can reach an agreement about spousal maintenance. This agreement can be documented in a formal way, such as through Consent Orders lodged with the Court or as part of a Binding Financial Agreement. Formalising the agreement is important for clarity and enforceability.
To help us advise you: Have you had any discussions with your former partner about ongoing financial support?
What’s the difference between interim and final spousal maintenance?
Interim spousal maintenance is temporary support ordered by the Court after an application is made but before a final decision or settlement is reached. It’s designed to meet immediate reasonable needs. Final spousal maintenance is ordered as part of the overall resolution of financial matters, either by agreement or after a court hearing.
To help us advise you: Are you facing immediate financial hardship following separation?
Does having a job mean I can’t get spousal maintenance?
Not necessarily. If your income from employment (and any other sources) is insufficient to meet your reasonable needs, and your former partner has the capacity to pay, you may still be eligible for spousal maintenance to bridge the gap. The Court looks at whether you can “adequately” support yourself.
To help us advise you: What is your current income, and what are your estimated reasonable weekly living expenses?
If I am paying child support, do I also have to pay spousal maintenance?
It’s possible. Child support and spousal maintenance are separate obligations. The payment of child support is taken into account when assessing a party’s capacity to pay spousal maintenance and the other party’s need for it.
To help us advise you: Are you currently paying or receiving child support?
Can spousal maintenance orders be changed later?
Yes, spousal maintenance orders can be varied (increased, decreased, extended, or suspended) or terminated if there has been a significant change in the circumstances of either party since the order was made. This could include changes in employment, income, health, or living arrangements.
To help us advise you: Are there existing spousal maintenance orders in place, and have circumstances changed significantly since they were made?
Navigating Your Financial Future Post-Separation
Understanding your rights and responsibilities regarding spousal maintenance is a key part of moving forward after separation. Contact Kelly & McHale Family Lawyers today for your free first consultation. We will provide expert advice tailored to your situation.