What is spousal maintenance and who can claim it?

Tuesday March 8, 2022

What is spousal maintenance and who can claim it?

What is spousal maintenance?

Spousal maintenance is a payment (or multiple payments) by one spouse to the other (financially dependent) spouse as required for them to meet their ‘reasonable living expenses’ where they are unable to do so following their separation.

It is paid in addition to child support and any property of the marriage that the financially dependent spouse may receive on the basis of their contributions and future needs – and is often necessary in the interim because such division of property is yet to be determined and transferred or paid to the financially dependent spouse.

When is spousal maintenance payable?

A spouse party is not automatically entitled to maintenance from the other following the breakdown of their marriage or de facto relationship; each parties’ circumstances must meet the following thresholds:

The need to be maintained

  • The spouse party seeking maintenance must be unable to support themselves adequately because:
    • They have the care and control of a child or children of the marriage or de facto relationship under the age of 18 years;
    • They are unable to be gainfully employed by reason of age, or physical or mental incapacity; or
    • For any other adequate reason.

AND the capacity to maintain

  • The other spouse party will only be required to pay maintenance to the extent that they are reasonably able to do so.

How are the need to be maintained and the capacity to maintain worked out?

If neither spouse party has (yet) applied to the Federal Circuit and Family Court for any orders as to their maintenance or the division of property, they will be going through ‘pre-action procedure’. This includes the mutual exchange of statements of bank accounts, tax returns and other financial documentation.

Lawyers can often identify from this documentation what the income and expenditure of the spouse parties is or seek those instructions from their clients.

If a party does file an application in Court, they will be required to file a Financial Statement, which sets out their income and expenditure (on a weekly basis) as well as their assets and their debts.

If the financially dependent spouse can establish a need on the basis of one of the three reasons above and their reasonable living expenses exceed their income, they may seek payment from the other spouse to cover the amount that they are in deficit each week – or month or other period of time, depending on the frequency of the payments.

The other spouse’s capacity to pay will be a function of the extent to which their income exceeds their reasonable living expenses. This may be enough to pay the whole amount sought by the financially dependent spouse or only part of it.

Income-tested pensions, allowances or benefits (such as unemployment or disability support) are not considered by the Court in assessing a person’s income. In the hands of the paying spouse, this is a scarce resource and in the hands of the recipient spouse, their former spouse has a duty to support them (even after separation) before the State and the Taxpayer.

The Court retains significant discretion when determining what amount of maintenance (as well as the type and duration) would be ‘proper’ and will consider the following:

  • The age and state of health of each of the spouse parties;
  • The income, property, and financial resources (i.e. available capital / investments which can be sold) of each of the spouse parties;
  • Each of the spouse parties’ physical and mental capacity for appropriate gainful employment;
  • Whether either spouse party has the care or control of a child 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 spouse party seeking maintenance; and
  • The extent to which the payment of maintenance would increase the earning capacity of a spouse party (i.e. will they retrain or requalify for paid employment during the time that they are receiving maintenance?).

Lifestyle factors are also relevant. The Court will neither make orders for spousal maintenance that are barely enough for the recipient to live a subsistence lifestyle nor make orders for the recipient to live in luxury simply because the other spouse party is wealthy. It is a question of what is reasonable in all the circumstances.

What types of spousal maintenance orders can be payable?

The Court can make the following types of spousal maintenance orders:

  • Periodic maintenance
    One spouse may be ordered to make a regular periodic payment (i.e., weekly, fortnightly, or monthly) to the financially dependent spouse.
  • Lump sum maintenance
    One spouse may be ordered to pay a lump sum, rather than as a periodic payment, to financially dependent spouse as spousal maintenance or to transfer a property or other asset to them.

If you would like to find out more about spousal maintenance please contact our experienced spousal maintenance lawyers in Melbourne on 03 9629 7411.