What is Spousal Maintenance?
Spousal maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.
When is Spousal Maintenance Payable?
In accordance with section 72 of the Family Law Act 1975 (Cth), a person has a responsibility to financially assist their spouse or former de facto partner, to the extent that the first-mentioned party is reasonably able to do so, if the other party is unable to support himself or herself adequately due to:
- having the care and control of a child of the marriage who has not attained the age of 18 years; or
- by reason of age or physical or mental incapacity for appropriate gainful employment; or
- for any other adequate reason if that person cannot meet their own reasonable expenses from their personal income or assets.
Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.
How Do You Calculate Spousal Maintenance?
The is no reliable online calculator that you can use to determine how much spousal maintenance you may be eligible for from a former spouse or de facto partner.
Firstly, relief is discretionary and secondly, there is a myriad of factors that must be carefully considered in determining an application for spousal (or de facto partner) maintenance.
In short, you (or the Court) will need to consider:
- the income and expenses of your former spouse (or de facto partner) and whether or not he or she has the capacity to pay maintenance. That is, does his or her income exceed his or her reasonable expenses?
- If not, you are not entitled to maintenance.
- If your former spouse or de facto partner has the capacity to pay maintenance you will then need to consider to what extent you are unable to support yourself taking into account a myriad of factors such as:
- your age and state of health;
- whether you care for a child under 18;
- your income and reasonable expenses;
- any property and financial resources;
- your capacity for appropriate gainful employment;
- commitments to support a child or anyone you may have a duty to support;
- the eligibility of the parties for a pension, allowance or benefit;
- whether either party is entitled to receive or pay child support;
- a standard of living in all the circumstances that is reasonable;
- the rights of any creditors;
- any contribution to the income, earning capacity, property and financial resources of the other party;
- the duration and impact marriage;
- if either party is living with another party following separation, the financial circumstances of that new party. NOTE: maintenance will cease if you re-marry; and
- the terms of any binding financial agreement.
How Do I Apply For Spousal Maintenance?
In many cases, if you and your former spouse or de facto partner can agree on an amount of spousal maintenance, you can formalise the agreement by way of Form 11 application for consent orders or by way of a Binding Financial Agreement.
If you cannot agree with your former spouse or de facto partner you will need to apply to the Family Court for spousal maintenance. You will need to file the following documents in support of your application:
- a Form 1 Initiating Application (or a Form 2 Application in a Case if the case is ongoing);
- an affidavit in support of your application; and
- a Form 13 Financial Statement setting out your current financial circumstances. NOTE: you will need to complete Part N of the Financial Statement which sets out your weekly expenses.
Fees apply. As at 1 July 2019 the filing fee for a Form 1 Initiating Application is $350 (for final orders only) or $470 (for interim and final orders).
Can I Apply for Spousal Maintenance If I Was in a De Facto Relationship?
De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.
In Western Australia, section 205ZC of the Family Court Act 1997 (WA) applies and is substantially the same as section 72 of the Commonwealth Family Law Act 1975 (Cth).
Are There Any Time Limits That Apply for Spousal Maintenance?
Strict time limits apply on applications for spousal maintenance.
If you were married, applications for spousal maintenance must be made within 12 months of your divorce order becoming final.
If you were in a de facto relationship, your application for de facto partner maintenance must be made within 2 years of the breakdown of your de facto relationship.
If you do not apply within these time limits, you will need special permission of a court. This is not always granted. You will need to establish that, at the end of the period within which the proceedings could have been instituted without the special permission of the court, your circumstances were such that you would have been unable to support yourself without an income-tested pension, allowance or benefit.
The experienced family lawyers at HFM Legal regularly advise clients with respect to maintenance applications and assist clients with all other aspects of the breakdown of their relationship including property settlement, children’s matters and divorce and separation. We have 3 offices in Western Australia – North Perth, Maddington, and Broome.