The relationship is over, but can I afford to separate? What you may (or may not know) about spouse maintenance

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For many people, the fear of not being able to survive financially prevents them from taking that final step to separate. For others, separation occurs out of the blue, and they are suddenly left without a regular source of income or any earning potential. There are, however, options available.

What is spouse maintenance?

Spouse maintenance includes payments that are made after separation from one spouse to another. This is a different and independent remedy to child support (which is paid for the maintenance of children) and property settlement.

Spouse maintenance applies to married and de facto relationships.

What types of spouse maintenance are available?

There are three types of spouse maintenance orders that can be made by the Court:

  1. Urgent spouse maintenance;

  2. Interim spouse maintenance; and

  3. Final spouse maintenance.

Who is eligible for spouse maintenance?

The Court considers two issues when determining eligibility for spouse maintenance:

  1. Whether the party seeking spouse maintenance has a need for assistance, and is unable to support him/herself adequately. This need may arise if one spouse has been out of the workforce for a significant period of time, either to support their former spouse's career, to manage the household and care for children, or for any another particular reason; and

  2. Whether the other spouse has a capacity to pay.

Is there a time limit to apply for spouse maintenance?

There is a 12 month time limit, from the date of divorce, for a spouse who has been married to apply for spouse maintenance.

If you have been in a de-facto relationship, the time limit is 2 years from the date of separation.

Applications brought outside these time limits require the Court's permission. This adds another step to the process, and does not guarantee that permission will be granted.

Does the Court need to be involved?

It is possible to negotiate a Financial Agreement in relation to spouse maintenance without the need for Court Orders.

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.