A partner to marriage is liable to maintain the other partner to the extent that they can reasonably afford to do so and if their spouse is unable to support him or herself adequately because:
Parties may agree to Spousal Maintenance by entering into Consent Orders which may be made in the Local Court, Family Court or Federal Circuit Court. If no agreement can be reached, a party may apply to any of these Courts for a Spousal Maintenance Order. The spouse applying for spousal maintenance is the applicant spouse.
Note: The conditions under which Spousal Maintenance is payable to a former partner of a de facto relationship differ from the above. Refer to 'How the Courts determine Spousal Maintenance for separated de facto couples' information sheet.
The Court will look first to the reasonable needs of the applicant spouse and their capacity to provide for those needs (not taking into account any entitlement the spouse may have to social security). Their capacity to provide is based on their income, property and financial resources.
If there is a shortfall between the applicant spouse's needs and capacity, the Court will consider the other spouse's reasonable needs and their capacity to provide for their own needs. If that spouse has a surplus capacity of income, property or financial resources after providing their own reasonable needs, the Court will consider how much of that surplus should go to meeting the shortfall of the applicant.
Common scenarios in which Orders for Spousal Maintenance are made include:-
Spousal Maintenance can be sought at any time before a divorce. This includes where the parties have not separated but one spouse is failing to properly support the other. More commonly, Applications are made for Spousal Maintenance after separation. Applications for Spousal Maintenance must be made within twelve months of the divorce orders coming into effect. After twelve months from the date of the divorce, Spousal Maintenance proceedings may only be commenced with special leave of the Court.
Common types of Spousal Maintenance Orders include:-
A Court may Order interim Spousal Maintenance until a final property settlement is reached. The Court will then re-consider whether Spousal Maintenance remains appropriate following the spouse receiving their share of the marital property.
Any transfer of property will be presumed to be by way of property settlement (i.e. not Spousal Maintenance) unless the Order specifies it. It is therefore essential that Spousal Maintenance is identified in any Consent Orders. If not, the payer spouse may be disgruntled if the payee spouse subsequently seeks Spousal Maintenance after having already received a benefit that he/she had intended to be Spousal Maintenance.
Spousal Maintenance will automatically cease on the following events:
A Court can make an Order discharging, reducing or increasing an amount of Spousal Maintenance if it is satisfied:-
The recipient spouse does not pay tax on their Spousal Maintenance payments (unlike social security benefits or pensions which are taxable). Payments of Spousal Maintenance by a paying spouse are not tax deductible. Some paying spouses may, therefore, prefer to meet their Spousal Maintenance liability obligations by lump sum transfer of assets rather than by periodic payments from net income.
Urgent maintenance is covered by Section 77 of the Family Law Act 1975. Urgent maintenance is designed by the law as a short-term remedy. It is awarded by a court after a finding that the applicant is in immediate need of financial help without conducting a full hearing on the merits of the application.
The case of Williamson and Williamson (1978) FLC 90-505 is an example wherein the Court stated through Fogarty awarded urgent maintenance and stated that Section 77 is “aimed at orders in circumstances of relieving pressing, present need, and is determined on a rather pragmatic basis without any real hearing upon the merits”. When awarding urgent maintenance, the court can order periodic or lump sum payment.
Urgent maintenance is different from interim maintenance. Interim maintenance operates for only a few weeks for the purposes of enabling the applicant and respondent to present evidence and for the court to have time to hear an application for interim maintenance. The case of Ashton and Ashton (1982) FLC 91-285 discusses the distinctions between urgent and interim maintenance. In the latter case, it was held that in urgent maintenance application not all the evidence is available during the hearing.