Spousal and De Facto maintenance explained

Jul 23 2020

What is spousal maintenance?

Spousal and de facto maintenance is a provision of the Family Law Act (1975), which allows you to file for financial support from your spouse or former spouse. This typically happens, if after separation or divorce, you’re unable to adequately meet your reasonable expenses from your income and other financial resources.

According to section 72 of the Family Law Act (1975), a spouse has the right to seek financial support for the following reasons – which are far from being extensive:

  • He / she takes care of children under 18 years old,
  • He / she can’t access employment due to a mental or physical disability
  • Any other suitable reason such as the marriage affected his / her earning capacity.

How to apply for spousal maintenance?

There are two ways to apply for spousal maintenance: either both spouses manage to reach a direct agreement or else they take the matter inside a Courtroom by filing a court order.

It is generally encouraged to settle the matter outside a Courtroom and try to reach an agreement with your spouse.

File a court order

If a mutual agreement is impossible, then the next best course of action is to file a financial order. An application with sufficient evidence will be required, including proof of expenses, income, assets, age, and health condition.

Your spouse or ex-spouse should be informed about the application after you’ve filed the necessary documents. He or she will be required to file a response, including the financial statements within 14 days. The court will then review the matter, and make fair financial orders for both parties.

When to file an application?

There’s a time limit for filing the spousal maintenance documents. If you’re divorced, a court order application must be made not later than 12 months from the date of your annulment or divorce. In the case of separated couples, the application should be within 2 years from your separation date.

If you don’t file for a financial order within the above periods, then you will require the Court’s permission, which is rarely granted.

How is spousal maintenance calculated?

When it comes to deciding on the amount of spousal maintenance one party should pay the other, the Court looks at the financial situation of both parties.

Courts needs to assess the financial needs of the spousal support applicant as well as the financial capacity to provide support of the respondent in order to make a fair judgment.

What factors does the Court look at?

As previously mentioned, the Court looks financial factors like the income, expenses, assets and liability of the applicant in order to assess the financial situation and needs of the spousal support applicant. The Court will also look at the following elements:

  • Your age and state of health
  • Whether you are the primary caregiver of a child
  • What is a reasonable standard of living
  • Whether the relationship has affected your earning capacity
  • Any other elements relevant to assess the suitability of a spousal support claim as per section 76 of the Family Law Act.

Last updated on June 10th, 2019 – Written by Jeremy Maspero.

Jeremy Maspero is a family law lawyer with a diverse range of experience and skills. With the experience you need and results you want, contact Jeremy today for a consultation to understand how he can help you on 02 8052 3322 or jeremy@masperolegal.com.au.