In Australia, spouses have an obligation to financially support each other after separation.
This is different to child support as you may be required to pay for your children.
If you wish to claim spousal maintenance 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 reasons –
- 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 spousal 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 summarised as “need versus ability to pay”. Even if you establish a need for financial support, but the payer has no capacity to pay, your claim for spousal 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.
The Family Court can make an order for spousal maintenance in relation to couples who are or have been married or are or were in a de facto relationship.
Spousal maintenance is not child support. Child support is paid for the benefit of children. Where the Court makes an order for spousal maintenance, this is paid in addition to any child support that you or the other party may be required to pay.
In deciding whether or not to make an order for spousal maintenance the Court must be satisfied that –
- One party is unable to support themselves; and
- The other party has the financial capacity to support the first party.
There are various reasons as to why one party may not be able to support themselves, such as that person being unable to work as a result of having the care of a child aged under 18 years, or due to age, ill health or lack of skills.
There are no precise rules as to how much spousal maintenance a person should receive. The Court is required to consider a list of factors in determining an appropriate amount. As part of this process, the Court will consider both parties’ financial resources, as well as other factors such as the standard of living enjoyed by them during the course of their relationship.
All cases differ, and it is likely that your circumstances will be different to those of anyone else you know undergoing property settlement proceedings. If you believe you may have an entitlement or obligation to receive or pay spousal maintenance we recommend that you obtain prompt legal advice