Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 24 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
When you are the high-income earner in a relationship that is breaking down, a common question is ‘What expenses do I have to continue paying?’ and ‘Will I have enough money to continue to pay for everything?’
On the other hand, if you earn much less than your former partner, you might be worried about the level of support you can expect to receive once the relationship ends.
Spousal maintenance is particularly relevant in the separation process when there is a disparity between the incomes of a couple. The disparity often arises during the relationship, as a result of the different roles people adopt during their time together.
A common example is when one person continues in paid employment while the other person maintains the home, looks after young children or is unable to engage in paid work for some other reason (for example, poor health).
In this article, we explain what spousal maintenance is, why it exists and when you might need to think about it.
What is spousal maintenance?
Spousal maintenance is the financial support of a former spouse after separation. There are two things that have to be present in order for spousal maintenance to apply:
a former spouse must be unable to support themselves adequately (because they are caring for children, are incapable or working or for any other adequate reason); and,
the other party has the capacity (from their income or other financial resources) to financially support their former spouse.
Spousal maintenance is particularly relevant in families where one party is the primary income earner (and meets the big ticket household expenses such as mortgage repayments, car repayments and health insurances) and the other party cares for young children in the home, or doesn’t earn as big an income for some other reason.
There is no fixed rule, formula or scale to turn to when working out what someone’s spousal maintenance obligations might be.
As each family is different, each family’s financial needs and outgoings are different, and spousal maintenance can take many different forms.
The most common characterisation of spousal maintenance includes things like periodic payments of a set amount such as loans, mortgage or insurance repayments.
Most people prioritise achieving financial independence from their former partner and are focused on selling the home and splitting superannuation to affect a clean financial break following the end of a relationship.
These things are important, but the missing piece of the puzzle is what happens in the meantime, or what happens after you have agreed on your property settlement.
It’s easy to forget that spousal maintenance is an important economic tool for ensuring that people’s exit from relationships are as financially equitable as possible.
Spousal maintenance is particularly important in the early stages of separation, and while two people work out a final property settlement.
The law expects that if someone leaving a relationship is unable to adequately support themselves, and the other party has the capacity to be financially supporting them, those arrangements continue in some form.
Seeking legal advice can be beneficial to ensure you continue to meet your obligations after separation, and to ensure that you understand when spousal maintenance might apply in your case.
If you were to just stop paying for the costs of living you had been providing during the relationship (or if you start paying less than what you had been), then your former partner could seek court orders to invoke urgent or interim spousal maintenance.
Similarly, if you find yourself high and dry with limited or no income after separation, and the expenses your partner was meeting are no longer being met, then obtaining advice can help you gain clarity on what support you are entitled to.