Spousal maintenance is an agreement between two former partners where one party will provide financial support to the other as they are unable to support themselves. It applies to both marriages and de facto relationships, however with the latter, there is a certain criterion that is to be met before it can be seen as viable under the court’s eyes. It is outlined under the Family Law Act 1975 that spouses or de facto partners have an equal responsibility to support each other even after the annulment of their relationship.
As financial payout, the Court can order a lump sum, a weekly periodic payment, property transfer, make a Final Order, or any other arrangement which they think is suitable for the case.
Factors that affect Maintenance
The financial payout received via spousal maintenance varies on the court’s decision, and two major factors taken into account are the needs of the applicant and the responder’s ability to support them. Other aspects that need to be considered include age, income, health, financial assets, one’s ability to work and if the relationship has affected one’s ability to earn a proper income. The Court also takes into account with whom the children are living with (however, child support payments are separate to spousal maintenance). Fault is not taken into account in spousal maintenance, and one does not need to go to court for a maintenance arrangement, instead they can opt for consent orders or a binding financial agreement.
Eligibility
To be eligible for spousal requirement one must order for maintenance within the time limit that is decreed for their relationship. For a marriage or a nullity, you must apply within 12 months of the divorce or decree of nullity. De facto relationships however have a two-year period within which one can order maintenance. Once the applicant marries another person however, they are no longer entitled to receive spousal maintenance unless the Court orders otherwise. The same principle is applied to de facto relationships; however, the Court takes into consideration the financial situation in the relationship and whether the applicant is sufficiently supported.
How to Apply
Before applying, it is recommended to seek legal advice from a legal service as some financial orders require independent legal advice before applying for court. To apply for spousal maintenance, one needs to complete an application form for the Federal Circuit and Family Court of Australia (FCFCOA). The FCFCOA conducts maintenance hearings and provides deadlines for tasks that need to be completed before the hearing. The FCFCOA’s process varies on the complexity of the issues and the level of cooperation between the two parties.
If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.