Under the Family Law Act 1975, a spouse may have the right to financial assistance from their former spouse if he or she cannot meet their own reasonable expenses from personal income or assets following a separation. In such a case, it may be appropriate to seek financial support in the form of spousal maintenance from the other party. However, neither spouse has an automatic entitlement to spousal maintenance upon separation or divorce. Whether spousal maintenance can be successfully secured depends upon the individual factors of each case, including the need of the claimant party, and the financial capability of the other party, and the evidence about those matters.

Maintenance Requirements

For a court to make an order that one spouse financially support the other, the following factors need to be carefully considered:

  • Whether one spouse (the applicant) is unable to adequately meet his or her own reasonable financial needs. This means, in essence, that their income (excluding any Centrelink pension) is insufficient to cover their reasonable expenses. There will be an examination as to the reason for this need – whether it arises as a result of age or ill-health, due to child-care responsibilities, or for any other adequate reason, which are creating the situation where the applicant cannot earn income (or enough income). It is the deficit or ‘shortfall’ between income and reasonable expenses which is the amount which can be claimed for maintenance;
  • Whether the other spouse (the respondent) has the capacity to pay. This means that the respondent’s income exceeds their reasonable expenses, such that they have a ‘surplus’ which can be applied to the support of their former spouse. If the answer is ‘yes’, then it falls to the Court to consider how much of that surplus should be applied to the shortfall of the applicant, and for how long.

The entitlement to spousal maintenance ceases upon a dependent spouse remarrying. For de facto spouses who are seeking maintenance, the timing is important – they may have no right to maintenance if they separated before 1 March 2009.

Your Specialist Family Law Firm In Brisbane

BGM are a specialist family law firm with offices in Brisbane and on the Gold Coast, specialising in the many areas of Family Law, including spousal maintenance. Our Brisbane family law team is very experienced in dealing with complicated spousal maintenance issues and our understanding solicitors can help you through your unique situation. We’ve assisted hundreds of people assess their living costs and those of their spouse and advised them on what to do next. For expert legal advice contact us today on 1300 246 529 or send us an online enquiry.

Spousal Maintenance FAQ’s

Will spousal maintenance affect my Centrelink benefits?

This is something which is specific to each case, and you will, to be sure, need to get a decision from Centrelink about your unique circumstances. Centrelink benefits are not taken into account when assessing the income of an applicant for a spousal maintenance (test 1 above), but depending on the nature and extent of the benefits received, receipt of spousal maintenance may affect the amount of Centrelink you receive once you begin receiving spousal maintenance.

Will my lifestyle change?

‘Perhaps’ is the answer. A ‘paying’ spouse is not necessarily required to maintain the lifestyle that the maintenance recipient spouse enjoyed during the relationship. Assessing reasonable expenses of the applicant for maintenance (and for that matter, the payer of maintenance as well) is an exercise about what is appropriate and necessary in the circumstances of that case, having regard to the income which is available, and the lifestyle that was enjoyed during the marriage. Note however, even though a spouse may have enjoyed a very lavish lifestyle during the marriage, some of the costs associated with that lifestyle may not be reasonable beyond separation (particularly if there are now multiple households to fund). The focus is generally on ensuring that core living costs (accommodation, transport, health) are met, and these things are given priority over discretionary expenses.

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We’ve assisted hundreds of people assess their living costs and those of their spouse and advised them on what to do next. For expert legal advice contact us today on 1300 246 529 or send us an online enquiry.

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