Spousal maintenance

Spousal maintenance is where one person provides ongoing financial support for their former Husband or Wife or De Facto partner. It is often part of an overall property settlement negotiated between parties.

Spousal maintenance is a different payment to child support (which is paid for the benefit of supporting children) and spousal maintenance can be paid in addition to child support. Spousal maintenance is not an automatic payment and if the other party will not agree to pay it, an application needs to be made to Court seeking that it be paid.

The Family Court can make an order for one party to pay “spousal maintenance” to the other if:

  1. one spouse (the applicant) is unable to adequately meet the cost of their reasonable needs; and
  2. the other spouse (the respondent) has the capacity to pay.

In some cases, a party’s need for financial support can be immediate and in this case an urgent application can be made to Court to seek payment from the former spouse.

A common example of this is where a party remains living in the marital home and their former partner/spouse moves out refusing to contribute to the mortgage. We can assist in situations like this to apply to Court for an order compelling the other party to contribute financially or provide general financial support if needed.

In the event of a Court application being necessary, the party applying needs to show that they have a proper need for financial assistance. In determining this the Court will give consideration to the following factors:

  • your income, property, financial resources and debts;
  • your age and health (which determines future requirements);
  • your ability to earn, and whether this has been affected by the marriage;
  • what is considered to be a suitable standard of living and what you have been accustomed to; and
  • whether the children live with you or your former spouse.

The second part of a Court application is showing that the other party has the capacity to pay spousal maintenance. A party’s income earning capacity is quite distinct from a party’s income. This means that a party cannot by their own choice, perhaps in an attempt to avoid spousal maintenance obligations, reduce their income.

A party’s obligation to pay spousal maintenance may be discharged in various ways including through periodic and regular payments or by way of a lump sum payment. It may also exist for different periods of time.

Although spousal maintenance is generally intended to operate only for a short period of time following separation to enable applicants to get back on their feet, in certain circumstances, it may be appropriate that spousal maintenance be paid for a longer period of time.

Applications for spousal maintenance must be made within 12 months of your divorce becoming final. Later applications require special permission from the Court, but this is not always granted.

The Law Society of Western Australia Family Law Practitioners Association of Western Australia Law Council of Australia Family Law Section