Am I entitled to spousal maintenance?

by resconflict on April 16, 2019

Am I entitled to spousal maintenance? - Resolve Conflict Family Lawyers

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.

Am I entitled to spousal maintenance?

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.

How do I apply for spousal maintenance?

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.

Related Article: Duty of Disclosure: “Show and Tell” not “Hide and Seek”

What does the court consider when making a decision?

The court considers the needs of an applicant and the respondent’s capacity to pay. The court considers the following about both of you:

  • your age and health
  • your income, property, and financial resources
  • your ability to work
  • what is a suitable standard of living, and
  • if the marriage has affected your ability to earn an income.

The court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.

Is there a time limit?

You must apply for a court order:

  • within one year from the date of your annulment
  • within one year from the date your divorce order is final
  • within two years from the date your de facto relationship ended.

You can only apply to the court for maintenance after this time in special circumstances, however this is not always granted.

When does maintenance end?

The right to regular payments of maintenance ends:

  • if the person getting maintenance gets married again, unless there are special circumstances
  • if the person paying maintenance dies.

It may also end if the person getting maintenance improves their financial situation because:

  • they are in a new de facto relationship
  • their responsibility for caring for children changes significantly
  • their earning capacity increases.

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 info@resolveconflict.com.au

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