What is Spousal Maintenance?
Spousal maintenance is a payment from one former spouse to the other former spouse after separation or divorce. The purpose of spousal maintenance is to help the recipient support themselves. It is a separate payment to child support and may be payable in addition to child support.
Who is entitled to apply for Spousal Maintenance?
Not everyone is entitled to spousal maintenance. First, you must meet certain minimum eligibility criteria before a court will consider whether you are eligible for child maintenance.
In short, if you are or have been married, you are entitled to apply for spousal maintenance.
If you have been in a de-facto relationship it will depend on both the State or Territory you reside in and the date of your separation. This is because the laws have changed over the years at different times in different States and Territories. However in most cases, if you separated after 1 March 2009, you may be eligible to apply for spousal maintenance.
Who may not be entitled to Spousal Maintenance?
You may not be eligible for spousal maintenance if:
- you have remarried
- you are in a new de-facto relationship (as the details of this relationship will be taken into account)
- you are a de-facto couple residing outside of Australia
- You reside in any State or Territory other than Western Australia and you separated before 1 March 2009
- You reside in Western Australia and you separated before 1 December 2002
When is Spousal Maintenance payable?
Payment of spousal maintenance is not automatic. You must apply to the court. The court will then need to consider the applicant’s needs and the capacity of the respondent to pay spousal maintenance. For instance, is the applicant unable to meet their living expenses and does the respondent have enough disposable income to be able to provide spousal maintenance to them?
Perhaps the applicant is taking care of small children and is unable to work. Or perhaps the applicant is unable to work due to health issues. However, bare in mind that the Court will take into account whether the respondent can afford to pay spousal maintenance. If the respondent does not have the capacity to pay, then it is unlikely the Court will order spousal maintenance to be paid.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.