SPOUSAL MAINTENANCE

The Family Law Act provides for defacto and married couples who need financial maintenance after separation.  

 

However, as far as practicable the Court should make Orders that end the financial relationship between the parties and avoid any further proceedings.

What is Spousal Maintenance?


Spousal maintenance is a payment for financial support that can be made from one party of a relationship to another following separation that can be either an ongoing regular payment, or a one off payment.




When can spousal maintenance be paid?


Spousal maintenance may be claimed after separation by one party to a marriage, or a de facto relationship where separation occurred after 1 March 2009. Whether or not spousal maintenance should be paid will depend upon:

  • One party’s need for financial support; and
  • The other party’s capacity to provide financial support.
Spousal maintenance will generally be paid where one of the parties earns the income and the other party has inadequate means of income or support following separation. Spousal maintenance may be paid for a short period of time, or indefinitely. An indefinite order for spousal maintenance is only likely to occur if there is insufficient property to be divided to provide the dependant party with support. In determining whether spousal maintenance should be paid, the following test must be applied:
  • Whether there is a need for support by one party;
  • Whether the other party has the ability to pay;
  • Whether it would be appropriate for the payment to be made given all the circumstances.
Before making an order for spousal maintenance, there are a number of factors that a Court would consider, including:
  • The age and state of health of the parties;
  • The income, property and financial resources of each of the parties and their physical and mental capacity for employment;
  • Whether either party has the care of a child of the relationship;
  • The financial commitments of each party;
  • Any responsibility to support another person;
  • The eligibility of the parties for a pension, allowance, benefit or superannuation;
  • A reasonable “standard of living”;
  • Whether the maintenance would increase the earning capacity of the dependant person for education and training etc to earn an income;
  • Whether the dependant party has continued to the other party’s income, earning capacity and financial resources;
  • The duration of the marriage and affect on the dependant party’s earning capacity;
  • The requirement to protect a party who wishes to continue their role as parent;
  • The financial circumstances of cohabitation with another person;
  • The terms of any property settlement Order or financial agreement;
  • Any child support that has been paid or is payable;
  • Any other facts that the Court considers relevant.




What is the time limit for claimining spousal maintenance?


You must apply for spousal maintenance within 12 months after a divorce order, or within 2 years after separation for de facto couples. The court may grant leave to apply for spousal maintenance outside of these time limits only if:

  • hardship would be caused to one party by not granting the order; or
  • at the time of the deadline the party applying was unable to support themselves without an income tested pension, allowance or benefit.





Family Law Rockhampton

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