Spousal maintenance is when one party to a marriage ('Spouse A') must pay financial support to the other spouse ('Spouse B'), who is unable to adequately support themselves financially. These maintenance payments may exist during and after the relationship, meaning that you don't need to be divorced or separated in order to apply for spousal maintenance.
A spouse is defined as a party to a current or former marriage, and can include de facto relationships, in which case spousal maintenance is called 'de facto maintenance.' Other than different time periods for when an application for de facto maintenance has to be lodged, there are no other significant differences.
Under the Family Law Act, Spouse A is required to financially maintain Spouse B if the latter is unable to support themselves for one of the following reasons:
- Spouse B is taking care of a child of the relationship who is under the age of 18 years old
- Spouse B's age or physical or mental incapacity prevents them from obtaining a suitable job
- Any other adequate reason
To determine how much spousal maintenance should be paid by Spouse A, the Court will consider 2 key factors:
- The needs of Spouse B
- The capacity of Spouse A to pay maintenance
In their assessment, the Court will also take into account circumstances such as age, income, property owned, whether the marriage affected Spouse B's ability to earn income, and whether any children under the age of 18, or adult children with a disability, will be living with Spouse A or B. The Court will ultimately decide whether spousal maintenance should be paid at all, and if so, how much.
However, Spouse B is not entitled to spousal maintenance if they marry another person, unless the Court orders otherwise. If Spouse B start a new de facto relationship, the Court may take into account the financial circumstances in the new relationship when considering whether Spouse B can support themselves adequately.
Although you are not required to be represented by a lawyer or seek legal advice, family law can be complex. Obtaining legal advice will help you better under your legal rights and obligations.
If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.