We get asked this question a fair bit. Firstly, spousal maintenance is a payment from one person (of a marriage or de facto relationship) to the other for the purposes of:
- Maintaining the person seeking spousal maintenance to the extent that the other person is reasonably able to do so; and
- Only if the person seeking spousal maintenance is unable to support themselves adequately for a range of ‘adequate’ reasons.
Adequate reasons include but are not limited to:
- Having the care of a child of the marriage under the age of 18; or
- By reason of age, physical or mental incapacity for appropriate gainful employment.
Spousal maintenance is not a payment for children, it a payment for the former spouse.
A spousal maintenance payment is not an automatic payment just because one earns more than the other, although that is one of the factors that must be considered.
Other factors that must be considered are:
- The age and state of health of each party;
- The income, property and financial resources of each party and the physical and mental capacity of each of them for appropriate gainful employment;
- Whether either party has the care of a child or children of the marriage under 18 years old;
- The commitments necessary to enable the party to support themselves and a child or another person that party has a duty to maintain;
- The standard of living in all reasonable circumstances;
- The above list is not exhaustive.
Spousal maintenance can be agreed to between the parties in a private agreement or incorporated into any consent orders or one party can commence proceedings in the Federal Circuit and Family Court of Australia seeking an order for spousal maintenance.
The Court considers spousal maintenance in two broad categories:
- Urgent spousal maintenance – where a party is in need of immediate financial assistance;
- Spousal maintenance.
If you are in need of spousal maintenance or are concerned about your former spouse claiming spousal maintenance, give us a call to discuss your matter further.