An introduction to spousal maintenance requirements

An introduction to spousal maintenance requirements

The Family Law Act 1975 (Cth) (the Act) has a number of spousal maintenance provisions in place if a relationship has come to an end. There are numerous requirements and considerations the court will make when determining whether spouse maintenance orders should be made, and which this piece will broadly cover.

How does a person qualify for maintenance?

In order for a person to succeed for maintenance, they must demonstrate that they are unable to support herself or himself adequately because:

·         they are caring for a child of the marriage who is under the age of 18 years;

·         the person cannot obtain gainful employment by reason of age, physical or mental incapacity; or

·         any other adequate reason.

Considerations of the court

When an application for spousal maintenance is made, the court will look into whether the party where maintenance is being sought is reasonably able to pay. Additionally, the court will also consider the standard of living, taking into account whether the circumstances are reasonable.

In terms of the person making the application for spousal maintenance, the court when considering the income of the applicant will not take into account an income-tested pension or allowance, as outlined in s 75(3) of the Act.

Some of the matters that the court will take into consideration in relation to spousal maintenance can be found in s 75(2), and can include some of the following:

·         age and the health of each party;

·         the income, property and financial resources of all parties, as well as the physical and mental capacity of all parties to be gainfully employed;

·         the responsibilities that either party may have in either the support of a child under 18 years or another person where there is a duty to maintain.

The above list is by no means exhaustive, and the court will look into a number of additional factors found under the section.

The application process for spousal maintenance

Applications for spousal maintenance will depend whether or not there are divorce proceedings on foot. If a divorce has been finalised, then an application for spouse maintenance must be made within 12 months. However, an application may be made immediately upon separation either through the Local Court, the Federal Court or the Family Court. For applications made after 12 months, special leave must be sought.

For applications where no other court proceedings are on foot besides that related to spousal maintenance, applications should be lodged in the Federal Circuit Court.

When do spouse maintenance orders cease?

Generally speaking, spousal maintenance orders end either through marriage or death, unless the court makes a continuation order as stated in s 82 of the Act.