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Spousal maintenance

Information about when a person can be eligible for spousal maintenance, or when a person may have to pay.

Spousal maintenance is money paid by a person to their ex-partner when that person cannot support themselves. The order can be made where necessary whether the parties were married or in a de facto relationship.

When the court is considering making an order for spousal maintenance they will consider the applicant's need and the respondent's ability to pay.

See ss. 72, 90SF(1)—Family Law Act 1975 (Cth)(opens in a new window).

De facto relationship

For a de facto relationship to be recognised the parties must have been together for at least 2 years, or have a child together or the substantial contributions made from one person to the relationship that it would be a serious injustice not to make an order, or be in a registered relationship.

See De facto relationships—Property settlements and de facto relationships.

Dispute resolution

The family law rules require parties to try dispute resolution before starting a case about spousal maintenance. There are exceptions if there have been allegations of family violence, child abuse, or if the matter is urgent.

See Dispute resolution and property.

Matters that may be taken into account

The matters that a court may take into account when making a decision about spousal maintenance are:

  • the age and state of health of each of the parties
  • the income, property and financial resources and their physical and mental fitness for work
  • whether either party has care and control of a child of the marriage who is under 18 years old
  • commitments of each of the parties to each other necessary for the party to support:
    • themselves
    • a child or other person that the party has a duty to maintain
  • the length of the relationship
  • the responsibilities of either party to support any other person
  • the eligibility of either party for a pension, allowance or benefit under:
    • any law of the Commonwealth, a state or territory, or other country, or
    • any super fund or scheme, and
    • the rate of any such pension, allowance or benefit being paid to either party
  • where parties have separated or divorced, a standard of living that is reasonable in the circumstances
  • the extent to which the payment of maintenance would increase the earning capacity of the applicant by enabling them to undertake study, training or to set themselves up in business
  • the effect of the order on a creditor's ability to recover a debt
  • the extent to which the applicant has contributed to the income, earning capacity, property and financial resources of the other party
  • the length of the marriage and the effect marriage has had on the earning capacity of the applicant
  • the need to protect the party who wishes to continue their role as a parent
  • if either party is living with another person, the financial circumstances of that relationship
  • the terms of any property settlement order, or bankruptcy property, and
  • any declarations or orders that have been made (or proposed) in relation to de facto property (under Part VlllAB) re:
    • a party to the marriage
    • a person who is a party to the marriage
    • the property of either of these parties (or bankruptcy of either)
  • any child support that a party to the marriage has provided, is liable to pay in future for a child of the marriage
  • any other factors the court believes needs to be taken into account
  • the terms of any binding financial agreements on either of the parties.

See s. 75(2)—Family Law Act 1975 (Cth)(opens in a new window).

How capacity to pay is worked out

This information can come from finding out:

  • a person's wages
  • their last notice of assessment
  • their child support payments
  • any instructions from the client.

A court will not make an order unless the other party has capacity to pay. So, for example if the person is on Centrelink benefits, there is no point applying.

Determining the need of the payee

The child support team can assist an applicant to draft Part N (orders for maintenance, child support, financial enforcement) of their financial statement to determine their needs and their expenses. They will need this to make an appropriate application to the court for spousal maintenance.

A parent seeking spousal maintenance may ask for the payment to be made as a lump sum.

See Federal Circuit and Family Court—Financial Statement Kit (do-it-yourself kit)(opens in a new window).

Spousal maintenance and family violence

The child support team has seen a recent increase in requests for spousal maintenance, particularly among migrant communities with short marriages and a history of family violence. Often because of a person's visa status, a person may not be eligible even for Centrelink benefits and therefore is at risk of homelessness.

How long a spousal maintenance order may last

This is up to the court. It will depend on the needs of the payee spouse. For example, an order may be made for 3 years to give the person an opportunity of doing some training so that they can support themselves in future.

If the order is necessary so that the payee can care for the child until it reaches school age, the order may be made for longer.

Order can be registered for collection

If the court makes an order for a periodic spousal maintenance order, this can be registered for collection with the Department of Human Services Child Support (DHS child support). If an order is made for a lump sum payment, this cannot be registered.

More information

Legislation

Family Law Act 1975 (Cth)

  • s. 72—rights of spousal maintenance for married couples
  • s. 74—power of the court in spousal maintenance matters
  • s. 75(2)—matters to be taken into account for spousal maintenance
  • s. 90SF(1)—de facto couples

See Family Law Act 1975 (Cth)(opens in a new window).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

  • Schedule 1—pre-action procedures in property settlement and spousal maintenance matters

See Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window)

References

Federal Circuit and Family Court

The court site has links to the financial statement do-it yourself kit.

See Federal Circuit and Family Court—Financial Statement Kit (do-it-yourself kit)(opens in a new window).

Updated