Articles

12th Apr, 2008

Spousal Maintenance

The family law system offers two bases for financial support upon separation. For a relationship with children, the first port of call is an application for child support. This is an administrative process that should be followed as soon as separation occurs. This application is usually made in conjunction with an application for Centrelink benefits.

The second possibility for financial support is spousal maintenance. This is not an administrative process – to obtain spousal maintenance, an application must be made to the Courts, or an agreement reached between the parties. Spousal maintenance can include periodic payments as well as mortgage payments, utilizes and car expenses.

If child support is insufficient to meet daily expenses, advice should be obtained from a lawyer as to whether an application for spousal maintenance should be made. In some circumstances, an urgent application can be made.

In deciding if an order for spousal maintenance should be made, the court must look at two things; firstly whether the person applying for maintenance is able to adequately support themselves. Secondly, whether the other party has a capacity to pay. Capacity to pay is calculated as any surplus left over after reasonable commitments are paid. This is based on income as well as capital assets and earning capacity.

Relevant factors in deciding if maintenance should be awarded include:

age state of health of the parties;
income, property and financial resources of the parties and their capacity for employment;
care of children or other dependants, the commitments of each party to support themselves and other people;
the standard of living that is reasonable in the circumstances, duration of the marriage;
the need for maintenance for re-training and education;
any child support being paid;
circumstances of cohabitation of either party with another person;
any other relevant circumstances.

Income from social security is ignored for the purposes of spousal maintenance.

Generally maintenance orders are only for definitive period and cease upon either a property settlement being concluded or a date defined by the court.

Maintenance ceases upon the re-marriage of either party or death.

If spousal maintenance is ordered, this will effect social security entitlements and property advice from Cetnerlink about the effect of a proposed order should be sought. This includes if either party seeks that a lump sum spousal maintenance payment be made in conjunction with a property settlement. It will not however, have any child support assessment.

If you are in the need for ongoing support as a result of marriage breakdown (note that at this point in time maintenance is not available for defacto relationships), please contact our office.