At the end of a marriage or de facto relationship it is not uncommon for parties to consider whether they may be eligible to receive maintenance to support themselves. In this article we explain the obligation for a person to financially support their former partner, together with the types of maintenance orders a court may make.
What is maintenance?
Spousal maintenance is the obligation of a person to financially support their former partner following the breakdown of their marriage or de facto relationship, to the extent that their former partner is unable to support himself or herself.
It is important to remember that, while childcare obligations are a relevant consideration in determining whether maintenance should be paid, spousal maintenance is distinct from, and can be ordered in addition to, child support.
Who qualifies for maintenance?
A person is not automatically entitled to maintenance following the breakdown of their marriage or de facto relationship. Maintenance can only be ordered by a court if the following criteria are met:
1. The person seeking maintenance must be unable to support themselves adequately because:1
- the person has the care and control of a child of the marriage or de facto relationship (provided that the child is under the age of 18 years);
- the person is unable to be gainfully employed by reason of age, or physical or mental incapacity; or
- for any other adequate reason.
2. The other partner will only be required to pay maintenance to the extent that they are reasonably able to do so.
What does the court consider when deciding whether maintenance should be paid?
The family law courts retain significant discretion when making an order for maintenance. A court can make any order it considers ‘proper’ for the provision of maintenance.
When considering the ‘proper’ amount, type and duration of maintenance, a court will consider a very broad range of factors, some of which include:2
- the age and state of health of each of the parties; and
- the income, property, and financial resources of each of the parties and their physical and mental capacity for appropriate gainful employment; and
- whether either party has the care or control of a child of the marriage, and the need to protect a party who wishes to continue in their role as a parent; and
- the duration of the marriage or de facto relationship and the extent to which that has impacted on the earning capacity of the person seeking maintenance; and
- the extent to which the payment of maintenance would increase the earning capacity of a party.
A court will have regard to the parties’ standard of living prior to, and since, separation. The amount of maintenance must otherwise be sufficient to adequately support the person seeking it, to the extent that the means of the person paying maintenance permit.
A court will not expect the person seeking maintenance to live at a mere ‘survival’ level, nor will it provide for them to live in luxury simply because the person paying maintenance is wealthy. Rather, a court will order an amount for maintenance that will permit the person seeking maintenance to live at a standard of living that is reasonable in all the circumstances.
A court will also exclude any income tested pensions, allowances, or benefits from consideration of that person’s income.
Are there different types of spousal maintenance?
The family law courts have significant discretion to make maintenance orders in a variety of forms.
Maintenance may be ordered in a manner which requires the payer to make a regular periodic payment (i.e., weekly, fortnightly, or monthly) to their former partner.
A court can also order a party to pay an expense to a third party on behalf of their former partner on a periodic basis. For example, a court could order a party to pay rent to a landlord, home loan repayments to a bank or utility bills to a provider by way of spousal maintenance. These orders are often made as interim or periodical orders pending final resolution.
Lump sum maintenance
A court can also order maintenance to be paid by way of a lump sum, rather than as a periodic payment. Further, a court may order that a party transfer a property or other asset to the other party by way of spousal maintenance.
Lump sum maintenance may be preferable when:
- A party anticipates there may be difficulty in enforcing a periodic maintenance order.
- It is desirable to finalise the financial relationship between the parties as soon as possible
- A party requires a lump sum for a defined or specific expense or purpose (for example, the payment of twelve months rent in advance to secure a rental property).
An order for lump sum maintenance is often a component of final orders, in an endeavour to thereby sever financial ties between the parties. However, an order for lump sum maintenance may not prevent the party seeking maintenance from later seeking periodic, or further lump sum, maintenance.
Maintenance can be sought by a party or ordered by a court on an urgent basis. The court can order that a party pay any sum the court considers ‘reasonable’ by way of urgent maintenance if it:
- appears to the court that the person seeking maintenance is in ‘immediate need of financial assistance’; and
- is not practicable in the circumstances to determine what order should be made.
Urgent maintenance orders are typically made for a short period of time as a ‘stop gap’ measure before an application for interim or longer-term arrangements can be determined. The threshold of evidence required to satisfy an application for urgent spousal maintenance may be lower than other types of maintenance.
Is there a time limit for applications?
For parties who have separated but remain married, there is no time limit on an application for maintenance. However, if the parties divorce, an application must be made within one year of the date on which the divorce became final.3
For parties who were in a de-facto relationship that has broken down, an application for maintenance must be made within two years of the date of separation.4
How can we help?
Our team of family law experts have the knowledge and experience to provide you with tailored advice about your obligations and entitlements.