The Family Law Act 1975 provides that upon separation, a person to a marriage (or a de facto relationship if separation occurred after 1 March 2009) is liable to provide financial support to the other person if:

  • one of the persons is unable to adequately meet his/her own reasonable needs (i.e.: their needs exceed their income);
  • and; the other person has the capacity to provide such financial support (i.e.: their income exceeds their needs).

A person may be unable to adequately meet their own needs following separation for a variety of reasons. The Court will take those reasons into consideration in determining whether spousal maintenance will be ordered to be paid. Many of the common reasons that a person is unable to adequately support themselves include:

  • their role in caring for a child or children of the relationship;
  • advanced age or poor health;
  • physical or mental incapacity for work; time spent (and length of time spent) out of the workforce or in work of a reduced capacity, because of their role as homemaker and parent during the marriage.

The question of whether a person is able to ‘adequately’ support their ‘reasonable needs’ is not determined in reference to an objective standard (such as Commonwealth benefit rules) but rather is considered in the context of the affluence and lifestyle of the party during the course of the marriage and at the current time (after taking into consideration the additional expenses of operating two separate households). In considering the question of whether a person is able to pay spousal maintenance, the additional expense of operating two separate households is again taken into consideration. For example it is often the case that where there was once one income for one household, there is, after separation, one income for two households.

The Child Support Agency has no role in assessing spousal maintenance. Rather, spousal maintenance comes into effect upon the making of a binding agreement by the parties or order of the Court.

So that you are aware – there are time limits. Any application for spousal maintenance must be filed with the Court within 12 months of divorce (if the parties were married) or within two years of separation (if they were in a de facto relationship). A party cannot make an Application to the Court to receive spousal maintenance after this time, without the approval of the Court.

Phillips Family Law can advise you specifically as to your right to receive, or potential liability to pay, spousal maintenance.