A concern for most people enduring a separation or divorce is, ‘how will I pay the bills?’
It is a question front of mind for many spouses.
Under the Family Law Act 1975, a party may be liable to financially support their former spouse if he or she cannot meet their reasonable expenses following a separation or divorce. This depends on the financial circumstance of the other partner, who must have capacity to provide that level of financial assistance.
This is separate to the concept of child maintenance or property settlement.
You may be able to get spousal maintenance if you are:
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 2 things:
Binding Financial Agreements are often used as an effective way of protecting you from a spousal maintenance claim by your ex partner.
A Binding Financial Agreement (prenuptial agreement), when prepared properly, is capable of ousting the court’s jurisdiction to hear a spousal maintenance claim, so you do not have to worry about your ex partner asking for you to pay them maintenance in the future e.g. if they are sick, caring for the children or unable to work for some other reason.
Before applying for spousal maintenance, the law encourages parties to resolve disputes outside of court. If an agreement can’t be reached, you need to make an application for a Financial Order from the court.
Financial orders are handled in Family Court or the Federal Circuit Court of Australia. In court, you will have to prove your need for maintenance. You also have to prove your spouse’s financial ability to provide that maintenance. The court will make financial orders based on what is fair to both people.
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 if you fail to apply within the approved period of time. This permission is not always granted.
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 or entering into a de facto relationship, unless there are special circumstances. The entitlement may also end if your:
BGM Family Lawyers is a specialist family law firm on the Gold Coast and in Brisbane. We specialise in all areas of Family Law, including spousal maintenance.
Our team of experienced family lawyers is experienced in providing legal advice and support relating to claims for spousal maintenance. Our understanding solicitors can help you through your unique situation.
We’ve assisted hundreds of people to assess their living costs and those of their spouse and advised them on what to do next.
Contact BGM to arrange an appointment with one of our accredited family law solicitors or call now on 1300 246 529
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 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.
