Spousal Maintenance:The Basics

Spousal maintenance, like any other area of Family Law, involves an exercise of discretion by the Family Court and the success (or lack therefor) of any application is entirely dependent on the circumstances of the individual case.

What?

In Australia, financial support of spouses following separation is referred to as “spousal maintenance”. In other jurisdictions it is commonly known as “spousal support” or “alimony”.

Spousal maintenance is the financial support of one spouse or partner, by the other, following a relationship breakdown. It is separate to child support or adult child maintenance. A spouse or former de-facto partner can make an application for spousal maintenance following the breakdown of a marriage or de-facto relationship, if they are able to satisfy the Family Court that they have a right to spousal maintenance (ordinarily due to having care or control of a child of the marriage, or by virtue of age or physical/mental incapacity for appropriate gainful employment).

Why?

A spousal maintenance award is payable if:

  1. the party seeking the support has a reasonable need for same; and
  2. the paying party has the capacity to provide that financial support.

When?

Parties seeking spousal maintenance must make an application within the time limit appropriate for their circumstances. Parties who were in a de-facto relationship must make an application within 2 years of separation. Parties to a marriage must make their application for spousal maintenance within 12 months of the date of divorce.

How much?

The amount of spousal maintenance payable depends on the individual circumstances of the parties in each case. The Family Court will consider a range of matters when determining how much should be paid, and for how long, including:

  1. The age and health of the parties.
  2. The parties’ respective incomes and capacity for gainful employment.
  3. What standard of living is reasonable in the circumstances.
  4. The parties’ financial circumstances and resources.
  5. Whether either party has the care of a child under the age of 18.

There are a range of other considerations, although the above are the factors more commonly considered.

Spousal maintenance is not intended to be a permanent obligation, although the period in which it is to be paid varies depending on the circumstances of each case.

Spousal maintenance is commonly paid in periodically and in weekly, fortnightly, or monthly instalments. Spousal maintenance can also be in the form of one party paying for the other’s living expenses, including home loan repayments or rent, health insurance and utilities. Alternatively, the spousal maintenance obligation can be a combination of cash payments and the payment of particular living expenses or as a lump sum made in conjunction with a final property settlement.

How?

If parties are unable to agree for the payment of spousal maintenance, the applying party can commence proceedings in the Family Court of Western Australia. If a party is in urgent need of spousal maintenance, the Family Court may list the matter for an urgent hearing, prior to a detailed exploration of this issue being possible at an interim hearing.

If agreement can be reached in relation to spousal maintenance and/or property settlement matters, that agreement can be documented in either a Form 11 Application for Consent Orders, a Binding Financial Agreement, or a Minute of Consent Orders.

Need more information and advice?

 Please contact Kerr Fels on (08) 6381 9080 to make an appointment for specific advice about your situation.

The information in this article is of a general nature and should not be relied upon for your family law matter.

 About KERR FELS – Divorce and Family Lawyers

Kerr Fels is a boutique law firm practising exclusively in family and divorce law. We offer experience in settling complex financial matters arising from separation involving business entities, trusts and large asset pools, in addition to negotiating simple divorces. We are conveniently located in the Perth CBD.

Our philosophy is to provide client-focused cost effective, efficient and pragmatic legal advice. 

Don’t hesitate to contact us if you need advice about any aspect of separation or divorce.

We are open Monday to Friday from 8.30am until 5.00pm.

We offer the option of video conference meetings for those who are unable to attend in-person appointments.

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