Basic Information About Spousal Maintenance

Spousal maintenance is the obligation of a party to provide financial support to his former spouse or de facto partner. It is not an automatic right.

Spousal maintenance refers to the amount that is given by a person to his former spouse or de facto partner for the latter’s financial support. After divorce or separation a person may or may not be entitled to spousal maintenance. It is therefore not an automatic right. A person has to ask for it from his former spouse or partner (unless voluntarily given) or apply for it in court.

When parties agree

The former couple can agree about the spousal maintenance and formalize such agreement in writing. To make this agreement more binding and enforceable the parties can apply to the court for consent orders which will be issued without having to go through a hearing.

If the parties do not agree

The party seeking for the spousal maintenance may file an application with the court. Parties will have to go through pre-action procedures since these are part of the requirements before the court will entertain the application.

The application must be filed within 12 months from the time the divorce became final for within 2 years of the separation of the de facto partners. An application may still be filed beyond the aforementioned periods but the matter will be left to judicial discretion.

Spousal maintenance orders

There are three types of spousal maintenance orders:

Urgent spousal maintenance that is premised on an immediate need.  The proceedings are summary without a trial on the merits. Thus, the case will be decided based on the application and affidavits submitted without examination of the parties.

Interim spousal maintenance orders are issued during the pendency of court proceedings. The amount that is given to the applicant is only temporary until the disposition of the main proceedings. The usual procedure is that the property settlement is finalized first before making a final determination of the spousal maintenance. It may be that after receiving a substantial property settlement the applicant does not anymore need financial support. It could also be that after the property settlement the party from whom spousal maintenance is sought could no longer afford to give financial support.

Final spousal maintenance order is the final determination of the financial support that a former spouse or de facto partner will receive. This will stay in force until the responsibility to pay ceases or there is a modification of the order.

Cessation of spousal maintenance

The duty to pay spousal maintenance ceases upon the death or the remarriage of the applicant.

Modification of spousal maintenance order

The court’s order may be suspended, revived, or discharged because of a substantial change in the circumstances of the parties, material fraud and the consent of the party was obtained through fraud or coercion.