5 Biggest Myths About Family Law
Family law is complex, and its complexity adds to the countless myths surrounding the topic.
These myths can add yet more stress and confusion to what is already an emotional time – so it’s...
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At BGM Family Lawyers, we help people through all of the legal areas of separation and divorce, parenting and child support, and spousal maintenance.We provide clear, practical advice on spousal maintenance entitlements and obligations under the Family Law Act 1975. Our team guides clients who need to apply for support as well as those who may be required to provide it, ensuring you fully understand any claim and options.
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WHAT IS SPOUSAL MAINTENANCE?
Separation and divorce often raise difficult financial questions. For many, the first concern is simple: how will I pay the bills?
It is a question on the front of many spouses’ minds following the breakdown of a marriage or de facto relationship.
Under the Family Law Act 1975, a party may be liable to financially assist their former spouse, via spousal maintenance payments, if he or she cannot meet their reasonable expenses following a separation or divorce.
This depends on the circumstances of each party, as there must be an assessment of one party’s genuine need to be maintained, and of the other’s financial capacity to provide that level of assistance.
This is separate from the concept of child support or property settlement.
You may be able to receive spousal maintenance if you are:
- separated or divorced from a spouse;
- separated from a de facto partner after 1 March 2009.
To learn more and get started, book a call with us today.
BOOK FREE PHONE CONSULTATIONDETERMINING SPOUSAL MAINTENANCE PAYMENTS
Of all of the legal concepts dealt with by family lawyers, spousal maintenance is one of the most ‘mathematical’.
That’s because an applicant for maintenance must demonstrate two things:
- Need for support – A party may be unable to support themselves due to ill health, caring for young children, or time out of the workforce. This is calculated by comparing income from all sources (excluding Centrelink) with reasonable living expenses. If expenses exceed income, the shortfall can form the basis of a maintenance claim.
- Capacity to pay – The other party’s ‘available’income is assessed against their own reasonable expenses. Any surplus may be used to reduce or meet their spouse’s shortfall, through either a lump sum or ongoing payments.
FINANCIAL AGREEMENTS
Agreements about property settlement are often intended to be ‘final’, and to comprise a provision for a spouse’s maintenance. Equally, an agreement about the maintenance a spouse is receiving is often intended to be finite. Financial Agreements are often used as an effective way of recording an agreement to énd’ further spousal maintenance claims once they have been settled. A properly prepared Financial Agreement can be used to protect you from a spousal maintenance claim (or further claims) by your ex-partner down the track.
FINANCIAL ORDERS
Before applying for spousal maintenance, parties are encouraged to resolve disputes out of court. If no agreement is reached, an application for Financial Orders can be made to the Federal Circuit and Family Court of Australia. In court, you must prove both your need for maintenance and your spouse’s capacity to pay to be a successful applicant for maintenance orders.
APPLY FOR SPOUSAL MAINTENANCE
For married and divorced spouses, a spousal maintenance application must be made within 12 months of their divorce becoming final. Applications for de facto partner maintenance must be made within two years of the breakdown of the relationship.
You will need to apply to seek the leave/permission of the court to proceed with a claim ‘out of time’ if you fail to apply within the approved period of time. This permission is not always granted.
PAYMENT OF SPOUSAL MAINTENANCE
Spousal maintenance can be a one-off lump-sum payment or ongoing periodic payments. The entitlement to spousal maintenance ceases upon a dependent spouse remarrying, unless there are special circumstances. The entitlement may also end if your:
- financial situation improves,
- responsibility for caring for children changes, and/or
- earning capacity improves.
YOUR FAMILY LAW TEAM ON THE GOLD COAST
When it comes to spousal maintenance and family law, the lawyer you choose can make all the difference. Here’s why clients trust BGM:
Experience that matters
With decades of combined expertise in family law, we know how to navigate even the most complex spousal maintenance claims with clarity and confidence.
Practical, cost-saving strategies
We focus on solutions that save you unnecessary stress and expense, aiming to resolve matters out of court whenever possible.
Clear and supportive advice
We strip away the legal jargon and provide straightforward guidance, so you always know where you stand and what to expect.
Collaborative, client-focused approach
Your matter benefits from the combined expertise of our legal team. We work collaboratively behind the scenes to deliver considered advice that prioritises your financial and emotional well-being.
Award-winning expertise
Recognised across the Gold Coast and beyond for our dedication to achieving positive outcomes, we are the team that clients recommend when it matters most.
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We’ve assisted hundreds of people in assessing their living costs and the financial situations of their spouses, and advised them on the next steps to take.
Contact BGM to arrange an appointment with one of our family law solicitors, or call now on 1300 246 529.
Spousal Maintenance FAQ
Have questions about spousal maintenance under the Australian Family Law Act? These are answers to Frequently Asked Questions that clients ask our spousal maintenance lawyers.
Will spousal maintenance affect my Centrelink benefits?
Many clients ask if spousal maintenance will impact their Centrelink payments. The answer depends on your individual circumstances, so you’ll need Centrelink to make a formal decision in your case.
Centrelink benefits are not considered when assessing a person’s income, and therefore their need for spousal maintenance (see test 1 above). However, once spousal maintenance is paid, it may reduce the amount of Centrelink you receive, depending on the type and level of benefits.
Will my lifestyle change?
The short answer is: perhaps. A paying spouse isn’t required to maintain the exact lifestyle their former partner enjoyed during the relationship. What matters is what’s considered reasonable and necessary in light of both parties’ income and circumstances.
While a particular lifestyle may have been possible during marriage, those costs may not be sustainable after separation, especially with two households to support. The focus is on covering essential living costs like accommodation, transport, and health before discretionary spending.
How much is spousal maintenance?
In Australia, the amount of spousal maintenance is not fixed and varies depending on individual circumstances. The court looks at factors such as the applicant’s financial needs, the other party’s capacity to pay, and the standard of living during the marriage. The aim is to make sure both parties can reasonably support themselves after separation.
Is spousal maintenance taxable?
In Australia, spousal maintenance payments are not taxable for the recipient and are not tax-deductible for the payer. It's important to note that financial arrangements following a divorce or separation can have tax implications, so seeking advice from a tax professional is recommended.
Do I have to pay spousal maintenance in Australia?
In Australia, under the national Family Law Act 1975, you may be liable to pay spousal maintenance to your ex-spouse or ex-partner if you can reasonably afford to do so, have enough financial resources, and if they are unable to financially support themselves in meeting their own reasonable financial needs. Whether or not you will have to pay spousal support depends on your individual circumstances and situation.
How long does spousal maintenance last?
The duration of spousal maintenance depends on the financial circumstances of both parties. Payments may stop if the recipient remarries, improves their earning capacity, or if care responsibilities for children change.
Ultimately, the court decides the duration of a maintenance entitlement/obligation how long the situation giving rise to the need to be maintained will go on for - for example, if a spouse’s need is because they have been out of the workforce, then consideration will be given to how long it will take them to retrain, find paid work and transition through any probationary period.
How do I end spousal maintenance payments if circumstances change?
If your spousal maintenance is set by a court order, you can apply to the Family Law Court to have the order changed. This may be possible if your ex-partner can now support themselves, or if they enter a new de facto relationship.
Spousal maintenance under a Financial Agreement is different - those Agreements are not able to be varied. Whether a further claim can be made for maintenance after a Financial Agreement has been signed is a complex question. - In those cases, you should seek legal advice about your options.
What is Alimony?
“Alimony” isn’t a legal term in Australia, but it’s often used due to overseas media. In North America, alimony refers to financial support paid to an ex-partner after separation or divorce, similar to what Australian law refers to as spousal maintenance.
How do I get out of paying spousal maintenance?
If your former partner (former de facto partner or spouse) is entitled to spousal maintenance, you may not be able to avoid payments altogether. However, in some cases, you can reach an agreement with them about short-term arrangements instead of ongoing court-ordered payments. Sometimes, property settlements are negotiated to incorporate any spousal maintenance claims, as a final ‘package deal’.
If you’ve had an application lodged against you or want to explore your options, it’s best to seek legal advice about your circumstances.
Can I reduce the amount of financial support I need to provide in spousal maintenance?
Spousal maintenance is designed to help a former partner cover reasonable living costs after separation, because they have no means of supporting themselves. Things that positively affect a spouse’s situation can impact any needs they have to be maintained. For example, if you take on more parenting responsibilities, or if funding is made available to update or refresh employment skills, your ex-partner may be able to work more and rely less on your support.
If your own financial situation changes and you need to pay maintenance that is set by a court order, you may also apply to reduce or end the obligation on the basis that you can legitimately no longer meet your own reasonable living expenses.
Still have questions? If your questions were not answered in our FAQ, or if you’d like the support of an experienced spousal maintenance lawyer from our team, book a free initial phone call today.
GET HELP FROM A SPOUSAL MAINTENANCE LAWYER YOU CAN TRUST
We’ve helped hundreds of people navigate the Family Law Act and spousal maintenance.
Whether you:
- Need help with a spousal maintenance application
- Want to know if you will have to pay spousal maintenance or are able to qualify for spousal maintenance payments
- Need representation in Family Law courts
- Need answers to questions in relation to the financial support claimed by, or paid by, a former partner
Our team is here to help.
For expert legal advice regarding these and any other family law issues, contact us today on 1300 246 529 or send us an online enquiry.
Alternatively, you can book a free 15-minute initial phone conversation with us to learn more.
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