Can I claim spousal maintenance from my former spouse?

The answer is yes, but you must first jump through a few hoops to have the Family Court of Australia make an order for spousal maintenance in your favour.

In a nutshell, section 72(1) of the Family Law Act 1975 says that a party to a marriage (or party to a de facto relationship if the relationship broke down after 1 March 2009: section 90SF(1)) is liable to maintain the other party where that party cannot do so themselves. That could be by reason of having children of the relationship less than 18 years of age living with them, difficulty in gaining employment because of age or physical or mental incapacity, or for “any other adequate reason”.

Essentially, it is a three-pronged test (or a ‘threshold test’), namely:

1. Can you, as the applicant, show that there is a shortfall between your income and expenditure to fund your reasonable living expenses (emphasis on the ‘reasonable’)?

2. Can you, as the applicant, show that you are doing everything in your power and capability to meet that shortfall, but just cannot do so?

3. Can the respondent (your spouse) be proven to still have a surplus of funds, whether by way of income, earning capacity, property and/or financial resources, to be able to meet your shortfall after they meet their own reasonable living expenses and commitments?

If each one of the above questions is answered ‘Yes’, you could be well on your way to a spousal maintenance order (or alternatively, on the paying end of that same order).

Having said that, there are some additional points you should keep in mind:

– There is no fettering principle that the pre-separation standard of living must automatically be awarded where the respondent’s means permit. In other words, just because you may have been used to buying $200 worth of lottery tickets each week when you and your spouse were together, that does not mean the court will make an order to ensure you can still buy those $200 worth of lottery tickets per week, notwithstanding your spouse can still afford to pay for it. Remember the test: ‘reasonable’ living expenses.

– The court has the discretion to exercise its judgment on a case-by-case basis whether the guiding principle is “reasonableness in the circumstances” (as per section 74 of the Family Law Act). In other words, the assessment made by the court is not administrative (e.g., the court will not just tick a few boxes and make an order in accordance with how much is being sought by you), but judicial (i.e., an examination of the parties’ competing claims based on the evidence before it must first take place).

– It is not necessary for an applicant to use up all of their assets and capital in order to satisfy the requirement they are unable to support themselves adequately. In other words, an applicant does not have to be on the verge of being penniless and/or destitute in order to qualify for a spousal maintenance order.

– If you simply refuse to work or to make attempts to find work that is reasonably available to you (under circumstances where you can do those things), it is almost a certainty you will be unsuccessful in your application. In other words, the court must be satisfied the threshold test abovementioned has been met.

– Where both property orders and spousal maintenance is being sought, spousal maintenance will ordinarily be dealt with after the determination of property settlement, unless there is a case for urgent or interim spousal maintenance that will typically only last for a relatively short period such as a few months or until the Final Hearing in a matter.

Lump sum spousal maintenance (e.g., one payment of $20,000) can be ordered by the court, but it will invariably first consider periodic payments (e.g., $300 per week) as well as the duration of any order it makes.

– There is a time limit for making an application: 12 months from the date of your divorce, or 24 months from the date of the breakdown of your de facto relationship.

An application for spousal maintenance, just like an application resisting one, can be both tricky and technical.

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