SPOUSAL MAINTENANCE

What Is Spousal Maintenance? 

Spouse maintenance is a periodic payment (weekly, fortnightly or monthly), which is designed to make up the difference in income you need to maintain your weekly living costs that you were accustomed to during the relationship. This is not an excuse to live a lavish and luxurious life but is rather a means of ensuring you can afford all your basic living costs and, in the event there are children to factor in, that you can continue to provide for all their usual costs as well. The types of costs this money may need to help cover, differs from person to person and is individualized to what your family’s particular needs are. For example, your family might have higher medical costs due to disability or ongoing illness and therefore your financial resources need to be able to cover this.

Spousal maintenance is not designed to be a drawn-out payment that lasts indefinitely but rather, designed to assist until both parties can be fully financially independent. Often this might come about as a result of a finalized property settlement. It is worth noting, that spouse maintenance can be in excess of child support under certain circumstances depending on the situation.

What Jurisdiction Does Spouse Maintenance Fall Under?

Spouse maintenance is a family law matter and as such, it is dealt with by either the Family Court or the Federal Circuit Court. Often, the payment of spouse maintenance stems from legal proceedings because it is statistically rare for people to outright agree to the periodic payment of funds to their estranged spouse. This is primarily because once a separation has occurred, one party does not feel that they should be responsible for the other party’s financial needs. 

The legislation on which spousal maintenance relies is the Family Law Act 1975. If you feel that you need to look to legislation, this is an indication that you should seek legal advice immediately. The interpretation of legislation is complicated and can vary depending on the reader. Don’t leave your financial future open to interpretation, seek legal advice to ensure your in the right hands.

If you are going to seek legal advice, contact a law firm that specialises in family law and get advice from a family lawyer regarding a spousal maintenance order with your former partner or ex-partner. The provision of spousal maintenance relates to de facto couples as well as married couples. 

In case you have never been involved in the litigation process before here is some terminology you may be unaware of. If you are the one who is filing the application, you will be called the applicant. If you are the one who is responding to the application, you will be classed as the respondent. These are important distinctions in case you are asked by the judge to speak. 

What Is The Process of Filing A Spousal Maintenance Application?

If you do need to seek legal intervention to receive spousal maintenance then you will file what is called a spousal maintenance application. The application will include an affidavit setting out the financial position you had when in the relationship and subsequently the financial position you now have as an individual. You will further include, what you consider to be, an adequate reason for why you need spousal maintenance. Both parties will then be required to file a financial statement setting out their costs per week in comparison to the amount they earn per week. For the party seeking the payment, it needs to be demonstrated that their financial circumstances are such that their income per week is less than their living expenses per week. Likewise, it would need to establish that the person who the payment is being sought from has the financial capacity or earning capacity to make up the difference (i.e. their income per week is substantially higher than their expenses per week). It is only once these two things are demonstrated that a court will consider someone to have eligibility to a financial entitlement. 

The court will always reflect their determination by way of a court order which orders how much the person is to pay and how frequently. It is worth noting that just because spousal maintenance is ordered sometimes, does not mean that the amount sought will be ordered. It is often the case that an amount will be ordered but it will less than what was sought due to the financial capacity of the payer. However, any amount is better than nothing.

Can You Settle The Matter Without Litigation?

Before you reach a litigation stage, there is the option of engaging in a dispute resolution process to try and settle the matter. Dispute resolution is a form of mediation where both parties (and their lawyers if applicable) meet with an accredited dispute resolution practitioner to try and work out an agreement. This is a conciliatory process that allows both parties to speak openly and freely in a non-prejudicial environment.  

Dispute resolution is a confidential process where nothing that is said can be repeated during the litigation process. The idea of this is to keep both people feeling safe and protected which in turn allows for a more open and free-flowing discussion. In the event an agreement is reached, it can still be formalized by way of consent orders which are provided to the court. 

Are There Any Time Limits Involved?

If you want to make a spousal maintenance application, there are time limits that apply. If you are suffering the breakdown of a marriage, then your time limit does not begin until such time as your divorce is final. From that date, you will have a 12 month period of time to make a claim for spousal maintenance. Please note, you need to be separated for a full 12 months before you can apply for a divorce order.

If you are suffering the breakdown of a de facto relationship, then you have two years from the date of separation to make a claim for spouse maintenance. Usually, you will seek to make a claim for spouse maintenance quite quickly, because you will be struggling financially straight away from separation. 

Is Superannuation Dealt With Differently?

Superannuation is dealt with as part of the parties property settlement but is not specifically considered as an aspect of spousal maintenance. As you may already be aware, superannuation cannot be provided to your spouse as anything other than super (unless there is a rare exception) and therefore if a superannuation split is involved, it will be provided as super. This will be a once off lump sum payment unless the super is already being accessed due to retirement. If that is the case then the matter will be dealt with differently.