Am I entitled to spousal maintenance?

Spousal maintenance is an amount of money paid by one party to a marriage or de facto relationship to the other party for their financial support. The payment of maintenance can be periodic or a lump sum. It is a separate payment to property settlement or child support.

In an application for spousal maintenance, the court will consider whether:

• the applicant can adequately support themselves; and
• the respondent has the capacity to support the applicant.

In determining whether the applicant can adequately support themselves, the court will have regard to whether the applicant:

• has the care and control of a child or children under the age of 18 years;
• is unable to obtain appropriate gainful employment by reason of age or physical or mental incapacity; and
• has any other demonstrated need having regard to the matters set out in section 75(2) for married couples, or section 90SF(3) for de facto couples of the Family Law Act 1975.

In practical terms, the court will add up the applicant's reasonable weekly expenses and deduct these expenses from their weekly income. The court has discretion about what expenses are reasonable and can reduce or remove certain expenses from the calculation. For instance, it may not consider $400 per week reasonable for hairdressing and reduce the amount of this expense to $100 per week. If there is a deficit (i.e. expenses are greater than income), that is the amount of the applicant's "need".

Even if the applicant is unable to adequately support themselves, the respondent is only liable to support the applicant in so far as they are reasonably able to do so.

The respondent's "capacity" to pay maintenance is similarly assessed by determining their surplus of income after payment of their reasonable commitments. The court adopts the same approach of considering each expense of the respondent and making a discretionary determination as to whether this expense is reasonable and should be all, or in part, taken up in the calculation of the respondent's capacity.

The court has an obligation to sever parties' financial ties upon separation. This means that final orders for the payment of a periodic sum of spousal maintenance usually last no longer than two to three years. In rare cases (for instance, where there are no assets to divide but one party has a substantial income), the payment of maintenance can be ordered longer term.

If you require any assistance with respect to financial matters including spousal maintenance, please do not hesitate to contact one of our experienced family lawyers.