Spouse Maintenance

Link to:
Introduction
De Facto Couples

Introduction     Return to TOP

As between parties to a marriage and therefore dictated by the Family Law Act (1975).

The right to apply to the Court for an order that your spouse pay spouse maintenance to you arises from Section 72(1) of the Family Law Act, which provides that:

"a party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so, if and only if, that other party is unable to support herself or himself adequately whether:

1. by reason of having the care and control of a child of the marriage who has not
    attained the age of 18 years;
2. by reason of age or physical or mental capacity for appropriate gainful
    employment; or
3. for any other adequate reason”.

Essentially, an application for spouse maintenance is dependent upon two criteria, namely:

1. You must establish that there is a need i.e. that you are unable to adequately support yourself; and
2. You must establish that your spouse is in a superior financial position to you and has the ability to pay spouse maintenance to you.

Note: The Court does not take into account Centrelink benefits when assessing whether you are entitled to spouse maintenance. Spouse maintenance is normally ordered pending a final property hearing or in any event for a limited period of time. Section 81 of the Family Law Act has been interpreted as requiring a “clean break” and no ongoing financial relationship except Child Support.

De facto couples are not entitled to apply for spouse maintenance under the Family Law Act.

The law in relation to de facto relationships is governed by State Legislation. In NSW the relevant legislation is the Property (Relationships) Act 1984.

Ordinarily any order for spouse maintenance is not to remain in force for more than a limited period.

Under the above NSW Legislation, if you are in a de facto relationship you may be entitled to spouse maintenance for a limited period. Special conditions apply and maintenance will only be ordered where the court is satisfied as to either or both of the following:

(a) that the applicant is unable to support himself or herself adequately by reason of having the care and control of a child of the parties to the relationship, or a child of the respondent, being, in either case, a child who is, on the day on which the application is made:

(i) except in the case of a child referred to in subparagraph (ii)-under the age of 12 years, or
(ii) in the case of a physically handicapped child or mentally handicapped child-under the age of 16 years,

(b) that the applicant is unable to support himself or herself adequately because the applicant’s earning capacity has been adversely affected by the circumstances of the relationship and, in the opinion of the court:

(i) an order for maintenance would increase the applicant’s earning capacity by enabling the applicant to undertake a course or programme of training or education, and
(ii) it is, having regard to all the circumstances of the case, reasonable to make the order.

(2) In determining whether to make an order under this Part for maintenance and in fixing any amount to be paid pursuant to such an order, a court shall have regard to:

(a) the income, property and financial resources of each party to the relationship (including the rate of any pension, allowance or benefit paid to either party to the relationship or the eligibility of either party to the relationship for a pension, allowance or benefit) and the physical and mental capacity of each party to the relationship for appropriate gainful employment,
(b) the financial needs and obligations of each party to the relationship,
(c) the responsibilities of either party to the relationship to support any other person,
(d) the terms of any order made or proposed to be made under section 20 with respect to the property of the parties to the relationship, and
(e) any payments made, pursuant to an order of a court or otherwise, in respect of the maintenance of a child or children in the care and control of the applicant.

(3) In making an order for maintenance, a court shall ensure that the terms of the order will, so far as is practicable, preserve any entitlement of the applicant to a pension, allowance or benefit.

Please see Section 27 and Section 30 of the Property Relationship Act. Refer to Free Resources to obtain access to these links.

Contact Paul & Paul Lawyers directly to see how we can assist you with spouse maintenance.