Written by Danielle Rosano
Obligations to Pay Spousal Maintenance under the Family Law Act 1975
Pursuant to the Family Law Act 1975 (“the Act”), a party may be required to provide financial support to their former spouse or partner in certain circumstances if the other party is unable to adequately support themselves.
The issue of spousal maintenance is distinct from, and separate to, a property settlement and payment of child support.
Although there is no automatic right to spousal maintenance, it is important to bear in mind that the Act does impose an obligation on parties to financially support their former spouse or partner in certain circumstances, even after divorce or separation. The obligation to pay financial support to another party applies whether or not you and your former partner were married or in a de facto relationship.
The extent of any financial support that may be required to be paid by way of spousal maintenance depends on the capacity of the paying party and the reasonable needs of the other party.
In considering whether one party is liable to pay the other party spousal maintenance, the Court will consider various factors that may apply to both parties, including as follows:
- The income and of both parties;
- The age and health of each party;
- The ability of each party to engage in gainful employment;
- What a suitable standard of living is;
- Whether the relationship or marriage has impacted upon one party’s ability to earn an income and engage in gainful employment; and
- Which party any child and/or children of the marriage or relationship reside with.
If a party claiming spousal maintenance re-marries the Court will generally terminate the obligation of the other party to pay spousal the maintenance, however, in some rare circumstances, the Court may determine that the obligation should still continue even if the party in receipt of spousal maintenance has remarried.
Similarly, if the party in receipt of spousal maintenance enters into a new de facto relationship, this will not necessarily mean that the obligation for spousal maintenance is automatically terminated, although again the obligation is unlikely to be continued other than in rare circumstances.
In broad terms, to determine whether the obligation for spousal maintenance should cease if the party in receipt of spousal maintenance enters into a new de facto relationship, the Court will generally examine the financial relationship between that party and their new de facto partner in assessing whether that party can adequately support themselves.
Spousal maintenance can be paid as a periodic weekly, monthly or annual amount. Alternatively, spousal maintenance can also be paid by way of a one-off lump sum payment to the party in need.
If you are not able to reach an agreement with respect to spousal maintenance on a negotiated basis with your former spouse or partner, then you can apply to the Family Courts to seek a Court Order for the payment of spousal maintenance.
If you intend to make an Application for spousal maintenance in the Family Courts, it important that you are aware that under the Act, there are strict timeframes for the filing of such Applications.
In the event of a marriage, any Application for spousal maintenance must be filed with the Family Courts within 12 months of a divorce order becoming final.
In the event of a de facto relationship, an Application for spousal maintenance must be filed with the Family Courts within 2 years of the date that you and you and your partner separated on a final basis.
If you do not file an Application for spousal maintenance with the Family Courts within the timeframes specified above, then you need to seek the Court’s permission to file your Application ‘out of time’ before the issue of spousal maintenance can even be determined by the Court.
Although the Court will grant such permission in certain circumstances, this is often a difficult threshold test to meet. Accordingly, it is always prudent to ensure that you file any Application for spousal maintenance within the relevant timeframes provided for in the Act.
If an order for spousal maintenance has been made by a Court and you fail to comply with that order, then on the application of the party to whom the maintenance is owed the Court can take steps to enforce your obligation to pay spousal maintenance and may also impose other consequences or penalties upon you.
In the event you believe that you may be eligible to receive spousal maintenance or that you may be held by a Court to have an obligation to pay spousal maintenance, then it is important that you obtain independent legal advice in relation to your, or your spouse’s, potential claim for spousal maintenance.
