And they lived happily ever after…or did they?

Unfortunately, not all love stories have a fairy tale ending. Relationship and marriage breakdown is common, with statistics showing that 1 in 3 marriages in Australia end in divorce.

Children, property and assets all need to be considered when a couple choose to go their separate ways. In the event of divorce or relationship breakdown, the law has a duty to provide for the best interests of any children involved, in addition to the just and equitable division of their asset pool.

Where couples cannot agree, the Family Law Courts step in to ensure a fair outcome for both parties. Spousal maintenance is one way to ensure that, in addition to a fair property settlement, a financially disadvantaged party is not further disadvantaged as a result of their modest income and earning capacity compared with their spouse.

What is Spousal Maintenance?

Spousal maintenance is a court order that requires one spouse to pay a sum of money to their former better half to help them support themselves after divorce or separation. For example, if one party has been out of the workforce looking after children they may not have an income at the time they part ways and an order for spousal maintenance would help to fund the shortfall between their income (if any) and their reasonable living expenses such as food and rent.

The payment is more often required to be periodic (weekly, fortnightly, monthly, etc.) rather than a lump sum, but it can be both. Spousal maintenance is covered under the Family Law Act and it is important to note it is separate to child support or adult child maintenance.

Who is Eligible for Spousal Maintenance?

Both married and de facto couples can apply for spousal maintenance in the event of relationship breakdown. The Family Law Act sets out basic threshold eligibility criteria which must be met before an application for spousal maintenance can be made. Basic eligibility requires:

• One spouse is unable to financially support themselves due to having a child in their primary care, their age or physical/mental incapacity prevents them from working or for some other adequate reason; and
• The other spouse has the capacity to provide financial support for their former spouse as well as meet their own reasonable living expenses.

All in all, a court will consider whether an order for spousal maintenance would be proper under the circumstances. In addition to eligibility criteria, there are some circumstances which may deem a person ineligible for spousal maintenance, such as if and when they remarry.

How is Spousal Maintenance Determined?

When determining the level of spousal maintenance, a court will consider principles set out in the Family Law Act. Factors to be considered will include the parties’:

• Age
• Health
• Income
• Earning capacity
• Commitment to children of the relationship

Applying for Spousal Maintenance

An application for spousal maintenance must be made no later than within 12 months after divorce for married couples and two years after relationship breakdown for de facto couples. Beyond that, an applicant risks the court refusing them permission to prosecute their case even under hardship provisions.

Before an application for spousal maintenance can be made in court, both parties are generally required – unless truly urgent circumstances apply – to reach an agreement outside of court. This is referred to as ‘pre-action procedures’ and includes participation in dispute resolution. If an agreement is reached during pre-action procedures, then an application for consent orders will need to be filed. That is the ultimate goal in any matter so that neither party or their respective lawyers need to attend court.

If no agreement can be reached during pre-action procedures, then an application for spousal maintenance can be made to the court. Depending on the circumstances, an application can be made to either the Family Court or Federal Circuit Court of Australia.

When filing an application for spousal maintenance, there are a number of forms to complete and procedures of which you should be aware. An experienced family lawyer can help you navigate the entire process from start to finish and may even help resolve your case before a court application needs to be made, saving you time and money.

Taylor & Scott Lawyers have a reputation for providing strategic legal advice and services in all matters of family law along with understanding and transparency.

For assistance with your family matter, please contact us on (02) 9265 2500 or email us at info@tayscott.com.au.

At Taylor & Scott, “We Care For You”.