Under the Family Law Act, a legal or de facto spouse can claim spouse maintenance after separation. The Family Law Act 1975, states a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets. Note, it is different to child maintenance.
The extent of the support depends on what the other party can afford to pay, and this obligation can continue even after separation and divorce.
The support may be paid periodically or as a lump sum, depending on the circumstances.
A spouse has the right to maintenance to the extent that the other spouse is able to maintain them, if they are unable to support themselves adequately because of:
a) Having the care and control of a child of the marriage who has not attained the age of 18 years;
b) Age or physical or mental incapacity for appropriate gainful employment; or
c) For any other adequate reason.
It is always best to try and attempt negotiation and resolve disputes regarding spouse maintenance. If no agreement is made your next option is to attend Family Dispute Resolution, which is generally a quicker option than going to court, and less expensive.
If you still are unable to reach a formalised agreement, you can file and application with the court seeking spousal maintenance orders.
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The court considers the needs of an applicant and the respondent’s capacity to pay. The court considers the following about both of you:
The court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.
You must apply for a court order:
You can only apply to the court for maintenance after this time in special circumstances, however this is not always granted.
The right to regular payments of maintenance ends:
It may also end if the person getting maintenance improves their financial situation because:
Spouse maintenance applications can be complex. When deciding to make and application or defend an application you should seek trusted legal advice.
Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email [email protected]