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Spousal Maintenance

What is spousal maintenance?

Spousal maintenance is financial support one party provides to the other after the relationship has ended (whether married or de facto). Spousal maintenance is part of the property section of the Family Law Act and the time limits will apply.

Generally, spousal maintenance is payable where:

  • One party has a need for financial support
  • The other party has the capacity to provide that support, and
  • It would be proper in all the circumstances that the support be provided.

Typically, this would occur where one person is the income earner and the other has inadequate means of support as a consequence of the separation. Ongoing income payments may be required if there are insufficient assets to distribute, which would give the needy party some other means of support.

Maintenance may be payable for a short period of time or may be payable indefinitely. Spousal maintenance can be paid under a Court order or by agreement between the parties.

Sometimes spousal maintenance is included in a property settlement, by way of a lump sum or an allowance of the percentage distribution as a substitute for ongoing regular payments. This can be done by nominating a lump sum amount in a settlement and/or in orders or by adjusting the percentage distribution.

If you were in a de facto relationship, you may be eligible for spousal maintenance on the same basis.

To determine whether you should receive (or pay) financial support is in three parts:

  • Firstly, whether you are unable to support yourself adequately without maintenance (if the two of you are equally broke or struggling financially, the answer is likely to be ‘no’).
  • Secondly, whether the payer is reasonably able to pay.
  • Thirdly, whether it would be proper for the payment to be made in the circumstances. The first step is asking whether you have the capacity to earn sufficient income to support yourself; you will not be compelled to sell assets for this purpose.

You should seek legal advice if you are on either side of the spousal maintenance equation. This will give you some pointers about entitlements or obligations.

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