Last updated 25 May 2022
The Family Law Act 1975 (Cth) (Family Law Act) governs spousal maintenance. A spouse may have a right to obtain maintenance for themselves from the other party to a marriage (s 72 Family Law Act) or de facto relationship (s 90SF Family Law Act) after separation.
After separation, a party may be liable to maintain the other party, to the extent that they are reasonably able to do so, if the person seeking maintenance is unable to support themselves adequately when comparing their income to their reasonable weekly needs because of:
- their care of a child of the marriage under the age of 18 years
- their inability to be gainfully employed by reason of age, or physical or mental incapacity
- any other adequate reason.
Before a de facto spouse can claim maintenance, the applicant must satisfy one of the following criteria (s 90SB Family Law Act):
- the applicant and the de facto spouse have been in a recognised de facto relationship for at least two years
- there is a child of the relationship
- they have made a substantial contribution during the relationship and a failure to make such an order would result in a serious injustice
- the relationship was registered under state or territory law.
Application for spousal maintenance
Time limits apply to parties who wish to apply for spousal maintenance. The time limits are:
- former married spouse—must apply within one year of the date on which the divorce becomes final (s 44(3) Family Law Act). If they are separated but not divorced, the time limit does not apply
- former de facto spouse—must apply within two years of the end of the relationship (s 44(5) Family Law Act).
The court may extend this time if failure to extend time would cause hardship to the child or the person applying for the order (s 44(6) Family Law Act), or if the party’s circumstances at the end of the period were such that they would have been unable to support themselves without an income-tested pension, allowance or benefit.
The factors taken into account when assessing whether spousal maintenance should be paid are the same whether the parties were married (s 75(2) Family Law Act) or in a de facto relationship (s 90SF(3) Family Law Act). Those factors include:
- the age and health of each of the parties
- the income, property and financial resources of each of the parties, and the physical and mental capacity of each party for appropriate paid employment
- which party has the care or control of a child under 18 years of age of the marriage or relationship
- the financial needs and obligations of each of the parties to support themselves and their legal dependants
- the responsibilities of either party to support any other person
- the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, state or territory or under any superannuation fund or scheme and the rate of any such pension, allowance or benefit
- the standard of living that in all the circumstances is reasonable for the parties following separation
- the extent to which the payment of maintenance to the party would increase the earning capacity of that party by allowing them to undertake a course of education or training, or to establish themselves in a business or obtain an adequate income
- the extent to which the party who is seeking maintenance has contributed to the income, earning capacity, property and financial resources of the other party
- the duration of the marriage and the extent to which it has affected the earning capacity of the party seeking maintenance
- the need to protect a party who wishes to continue their role as a parent
- whether either party is living with another person and the financial circumstances relating to those living arrangements
- the terms of any court order made or proposed to be made in relation to the property of the parties
- any child support under the Child Support (Assessment) Act 1989 (Cth) (CS(A) Act)
- the CS(A) Act that a party has provided or is to provide for a child of the marriage or relationship
- any fact or circumstance that the justice of the case requires to be taken into account
- the terms of any financial agreement that is binding on the parties.
The court has a responsibility to make orders that will, as far as practicable, finally end the financial relationship between the parties and not result in further legal disputes (ss 81, 90ST Family Law Act). To this, the court will sometimes order that an asset be sold or transferred to the party seeking maintenance so that maintenance is paid as a lump sum.
Variation of orders
Before varying an existing spousal maintenance order, the court must be satisfied that since the order was made:
- the circumstances of one or both parties have changed
- the cost of living has changed sufficiently to justify a change in the payments
- the amount of maintenance ordered to be paid is not proper or adequate where the order was made by consent
- the material facts were withheld from the court when it made the original order.
Cessation (when maintenance orders cease)
- death of the spouse receiving maintenance
- death of a person liable to make the payment (subject to certain restrictions)
- remarriage of the spouse receiving maintenance (except in special circumstances).
Spousal maintenance will not necessarily end if the spouse receiving maintenance enters into a subsequent de facto relationship.
Powers of the court
- payment of a lump sum amount
- payment of weekly, monthly or yearly amounts of spousal maintenance
- transferal of property or assets to one party as a spousal maintenance payment
- a permanent, a fixed-period order or order for the life of one of the parties.
In addition, the court can order that spousal maintenance be secured, so that if the payment is not made, the security (e.g. land) can be sold and the proceeds paid to the person entitled to receive spousal maintenance.