Financial support following separation.
In Australia, spouses have an obligation to financially support each other after separation. This is different to child support you may be required to pay for your children.
If you wish to claim spousal maintenance (or partner maintenance if you were in a de-facto relationship), you must satisfy a threshold test.
You must be able to show that you cannot financially support yourself adequately because of any of the following three matters –
- the care and control of a child under 18 years of age;
- your age or physical or mental incapacity for appropriate gainful employment; or
- for any other adequate reason.
If you can financially support yourself, your claim for maintenance will fail.
However, if you cannot adequately support yourself, the Court must determine whether the other party has the capacity to pay. This test is sometimes summarized as “Need versus ability to pay”. Thus, even if you establish a need for financial support, but the payer has no capacity to pay, your claim for maintenance will fail.
It is very important to get good legal advice before you decide to file or defend a claim for spousal maintenance. This may avoid unnecessary legal costs. Once you decide to make or defend a claim, it is crucial to file the right evidence and disclose the correct documents in support of your case. We are happy to help.