By Dan Bottrel, Director of Bottrell Graham Moloney, Family Law Accredited Specialist
The end of a relationship is often followed by an unbundling of finances.
If one party is not as well-off as the other, it could put them in a difficult financial position. In that situation, they might be entitled to spousal maintenance (whether as married spouse, or as a member of a de facto couple).
Spousal maintenance and de facto maintenance are intended to help you meet your basic living expenses, rather than maintain a particular standard of living. It is usually in the form of weekly or monthly payments over a specified period, but can be a once-off lump sum payment.
Under the Family Law Act 1975, you can apply for spousal maintenance or de facto maintenance if you are unable to sustain your expenses from your personal income or assets. It is therefore separate form the question of child support, which covers the financial support of children of relationships.
Are you entitled to spousal maintenance or de facto maintenance?
To qualify for maintenance you need to meet two criteria:
- You must prove you can’t adequately support yourself financially
- Your ex-partner must have the financial ability to pay maintenance
De facto couples are able to apply for maintenance in respect of their relationship if:
- The couple have lived together for two years; or
- The couple have lived together for less than two years but have at least one child together
If you divorce, you must apply for maintenance within 12 months of the divorce order taking effect. If you leave a de facto relationship, you must apply for maintenance within 24 months of the separation date. These time limits can be strictly enforced, so keep an eye on them!
If you have a binding financial agreement that absolves your ex-partner of any financial obligations to you post-separation, you may be prevented from claiming maintenance (although there are situations where, even if a financial agreement says it ‘blocks’ maintenance, you may still be able to make a claim for maintenance – this can be complex, so it is best to see an experienced family lawyer abut that).
Do I need to go to court for spousal maintenance or de facto maintenance?
You don’t need to go to court to receive maintenance, nor do you need a lawyer. That said, family law can be very complicated, so you may be taking a big risk if you don’t seek help from an experienced family lawyer.
You and your ex-partner can agree on a maintenance arrangement after relationship breakdown. That outcome can cover the short-term, and the long-term. You can take that agreement to an experienced family lawyer, and they will document it for you, so that it is binding and enforceable.
If you can’t reach an agreement, you’ll have to take the matter to court. The court will take the following into account when determining how much financial support you should receive:
- Your financial resources. This includes your employment income, as well as the income you earn (or can earn) from property and other investments.
- Your age and state of your health. If you are retired or have an illness or disability that prevents you from working, it might help you demonstrate your ‘need’ for maintenance.
- Whether the relationship affected your ability to earn an income. For example, if you put your career on hold to be the primary caregiver to your children (such that, after separation, you have, comparatively to your spouse, a lesser income or income-earning capacity), it might support your receiving ongoing maintenance;
- Whether the division of parenting responsibilities has an ongoing impact on your income and income earning capacity (for example, do childcare obligations keep you out of the workforce, or reduce your capacity to participate in the workforce?);
- What a suitable and fair standard of living for your circumstances would be.
- Your ex-partner’s financial circumstances.
When should you not apply for spousal maintenance or de facto maintenance?
If your ex-partner can’t afford to pay maintenance or if you have sufficient means to support yourself, the court will not grant your request – in that situation, you are not able to meet the tests to be a maintenance recipient.
Applications for maintenance can be costly. So make sure you have a valid case and can prove that your ex-partner has sufficient surplus income to be able to pay maintenance, before proceeding.
If it turns out they can’t afford it, you could spend a lot of money on a maintenance application plus legal fees (if you hire a lawyer), and receive no maintenance order to justify having spent those costs.
Can spousal maintencance or de factor maintenance be withdrawn?
If you remarry, any spousal maintenance order will come to an end.
If you enter a new de facto relationship, a Court will entertain an application to discharge the maintenance order, on the basis that your financial situation has improved (that is, tha you are receiving support from another spouse).
