In family law, we are often confronted with difficult situations following the breakdown of a relationship. A common scenario is where two people live together in a relationship, one party is the primary breadwinner and the other party stays at home to care for the children. Not unusual and by no means the only scenario, but this example gives rise to the consideration of spousal maintenance.

When a married or de facto couple separates, they enliven the jurisdiction of the Family Law Act 1975 (Cth) to assist with the adjustment and separation of their finances and parenting arrangements. So too, spousal maintenance can come into play.

It is important to know that there is no automatic “right” to spousal maintenance in Australia. At law, there is a two-step test to determine whether any maintenance should be paid, as follows:

  1. Step 1: assess whether the person asking for maintenance has a “need”.

If a “need” for maintenance is established, we move to step 2. If a “need” is not established, the test stops here.

  1. Step 2: assess whether the person being asked to pay maintenance has the capacity to pay.

There are many different considerations made when determining whether or not an agreement or order for spousal maintenance should be made. Some of these factors include:

  1. the care and control of the children under the age of 18 years;
  2. the age and state of health of the parties;
  3. the capacity for gainful employment;
  4. the income, property and financial resources of each of the parties;
  5. the commitments of each of the parties to support themselves and other persons;
  6. the eligibility of the parties for a pension, allowance or benefit;
  7. a standard of living in all the circumstances that is reasonable;
  8. whether payment would increase the earning capacity of the other party;
  9. the rights of any creditors;
  10. any contribution to the income, earning capacity, property and financial resources of the other party;
  11. the duration and impact marriage;
  12. the nature of cohabitation with any other person;
  13. the terms of any property settlement;
  14. the child support payable and being paid;
  15. the terms of any binding financial agreement; and
  16. any fact or circumstances in the opinion of the court the justice the case requires to be considered.

Spousal maintenance can be paid in two ways:

  1. Periodic: where regular payments are made on a consistent basis; or
  2. Lump sum: where you receive a one-off payment as opposed to periodic payments.

There are arguments for and against both options and ultimately, the payment terms turn on the facts of your case.

It is also important to know that spousal maintenance is an entirely different issue to child support.

Time limits apply regarding seeking spousal maintenance. If you are in the process of separating or have already separated, it is important that you know your rights. If you are contemplating spousal maintenance, we highly recommend you speak to a lawyer in the Chamberlains Family Law Team to ascertain specific advice as to your circumstances. The family law team can be contacted at familylaw@chamberlains.com.au