It’s natural to have questions about what financial support might look like after separation, particularly if there has been a significant difference in income during the relationship.
If your former partner is a high-income earner, you might assume they will be required to continue financially supporting you, particularly if they were the primary income earner during your relationship.
However, a high income alone does not create an entitlement to spousal maintenance.
At BGM Family Lawyers, our experienced family lawyers regularly advise clients on matters that arise following separation, including property settlements and spousal maintenance. Below, we look at what needs to be established to receive spousal maintenance and how the courts have approached cases where an applicant has access to significant capital of their own.
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Key takeaways
- Having a high income does not automatically mean your former spouse has to continue financially supporting you after separation.
- To qualify for spousal maintenance, an applicant spouse must establish that they are unable to support themselves adequately, and that the respondent spouse has the ability to pay the spousal maintenance.
- Wanting to maintain the same standard of living you enjoyed during the relationship is not, on its own, enough.
- Your access to savings, investments or other capital can affect whether you are considered able to adequately support yourself.
- You are not necessarily expected to exhaust all of your capital before seeking spousal maintenance.
- The court has broad discretion, meaning the outcome will depend heavily on the individual circumstances of each case.
- Where possible, it is preferable to reach a private agreement on spousal maintenance rather than going to court.
What is spousal maintenance?
Spousal maintenance is financial support paid by one former spouse to the other following the breakdown of a marriage or de facto relationship.
To qualify for spousal maintenance, the applicant spouse must prove that:
- They have a need for financial support because they are unable to support themselves adequately;
- The other spouse has the capacity to financially support them;
- It must be reasonable in all the circumstances.
Does a high income mean my ex has to financially support me?
No. Establishing that the respondent spouse has a high income, and that they ought to continue to financially support the applicant spouse as they did during the relationship, is not enough.
Nor is the desire of an applicant to continue to enjoy their pre-separation standard of living sufficient to convince the court that a spousal maintenance order is appropriate.
An applicant spouse who cannot work and generate their own income, but who has access to capital, may not be able to demonstrate that they are unable to support themselves adequately.
Do I have to use my savings or assets before seeking spousal maintenance?
Generally speaking, an applicant for spousal maintenance is not required to use up all of their capital in order to satisfy the requirement that they are unable to support themselves adequately.
However, as with every legal dispute the court is asked to determine, each case will turn on its facts.
Where the issue centres around whether it is reasonable for the applicant spouse to apply their own capital towards their living expenses, rather than having those needs met through a spousal maintenance order, the court has broad discretion.
Several cases demonstrate how differently this can play out depending on the circumstances.
When can access to capital affect a spousal maintenance claim?
Beeston & Quint [2023]: $1.8 million available from a partial property settlement
In Beeston & Quint [2023], the court declined to make an interim spousal maintenance order in favour of the wife where she had access to $1.8 million in cash, being a share of the proceeds from the sale of the family home received by her as partial property settlement.
The wife argued that she wanted to preserve those funds, as she would need them down the track to buy a home in her desired suburb, and that instead the husband should financially support her from his income.
The court found that rather than compelling the husband to pay interim spousal maintenance, the wife could use the $1.8 million to support herself. The court also acknowledged that the trial judge at a final hearing, when making orders that are just and equitable, would have broad discretion concerning the treatment of the funds.
Askew & Vargo [2019]: approximately $520,000 in inherited assets
In Askew & Vargo [2019], the applicant wife was denied an interim spousal maintenance order where she had capital available to her made up of cash savings, term deposits and shares totalling approximately $520,000, all of which had come to her by way of inheritance.
The applicant argued that she ought not have to apply the remainder of her inheritance in lieu of spousal maintenance.
In refusing the de facto wife’s application, the court acknowledged that the need to retain capital and not use it for day-to-day support is a relevant consideration, but that it would not be proper to make an order for interim spousal maintenance.
Lambton & Lambton [2017]: spousal maintenance granted despite $400,000 in capital
In Lambton & Lambton [2017], the applicant wife succeeded in her application for interim spousal maintenance, notwithstanding that she still had a capital sum of $400,000 that she had earlier received from the husband and was set to imminently receive an additional $24,000 from the sale of shares.
The court stated that if the other spouse can maintain a spouse so that they do not have to use their capital, an interim spousal maintenance order was appropriate.
Padnall & Padnall [2014]: $87,000 in savings available
In Padnall & Padnall [2014], the applicant wife’s spousal maintenance application was denied where she had $87,000 in savings available to her.
The wife argued that the parties had intended to use the savings to pay for the children’s tertiary studies, and that if she used the money to support herself it would impact her ability to purchase a home for herself and the children.
In refusing to make a spousal maintenance order, the court said there could be no basis to disregard the $87,000. The wife’s stated desire to preserve the funds so that she could ultimately purchase a house, or draw on the funds to pay the children’s school fees as the parties had mutually intended before they separated, did not sway the court. Her application for interim spousal maintenance was dismissed.
Is there a set rule for spousal maintenance when one spouse earns significantly more?
No. These cases illustrate the broad discretion the court has and the absence of a ‘one size fits all’ approach.
Importantly, they also demonstrate why looking solely at the income disparity between former spouses does not tell the whole story. The court may also need to consider the applicant’s own financial position, including the capital available to them and whether it is reasonable for them to use some of that capital to meet their living expenses.
For those wanting greater certainty, a negotiated out-of-court outcome is always preferred.
Get advice about spousal maintenance after separation
If you are unsure whether you may be entitled to spousal maintenance, or whether you could be required to financially support your former spouse, getting advice early can help you understand your position and the options available to you.
BGM Family Lawyers can provide practical advice tailored to your financial circumstances and help you work towards an appropriate outcome following separation.
Spousal maintenance FAQs
How is spousal maintenance paid?
Spousal maintenance can be paid on a temporary or final basis. For example, you may only need financial support until your property settlement is finalised. In that situation, you may apply for interim maintenance while the financial matters between you are being resolved.
Payments can be made as a lump sum or periodically, such as weekly, fortnightly, monthly or annually. Spousal maintenance is not always paid in cash either. In some cases, it may be provided in another form, such as the transfer of a motor vehicle or investment property.
When do spousal maintenance payments end?
There is no single rule for when spousal maintenance ends. Payments may stop at an agreed or court-ordered date, if the recipient remarries, if financial circumstances change significantly, or upon the death of either spouse.
How can spousal maintenance be arranged?
Spousal maintenance can be arranged privately by agreement between you and your former partner or, if you cannot agree, through an application to the court. If an agreement is reached about how much maintenance will be paid, how often and in what form, it can be formalised through Consent Orders or a Binding Financial Agreement. If an agreement cannot be reached, either party can apply to the court to determine whether spousal maintenance should be paid and, if so, how much.
What factors does the court consider when deciding spousal maintenance?
Under the Family Law Act, you have to prove two things:
- You are unable to support yourself adequately; and
- Your former spouse is reasonably able to support you.
It may also consider factors such as your age and health, care of any children, child support arrangements and what constitutes a reasonable standard of living.
