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4 things you need to know about spousal maintenance

Spousal maintenance is financial support that is paid by one party to a marriage (or de-facto relationship) to their husband or wife (or former husband or wife) where they are unable to adequately support themselves. Spousal maintenance will generally only be available to a party where there is a substantial difference in incomes between the two parties at the date of separation.

 

1. Application process

If you want to obtain spousal maintenance, it is always better to attempt to reach an agreement with your (former) spouse first. However, if that is not possible, you can apply to the Federal Circuit and Family Court of Australia (‘the Court’) for spousal maintenance orders.

One of the forms you will be required to file with your application is called a Financial Statement. For a claim for spousal maintenance, your Financial Statement will need to have a detailed list of your income and expenses.

2. Threshold test

The “threshold test” for spousal maintenance can effectively be divided as follows:

(1) The applicant cannot support him or herself adequately; and
(2) The respondent has the ability to pay the spousal maintenance for the applicant.

To satisfy part (1) of the test, the applicant needs to show that he or she does not have the ability to financial support him or herself, due to:

(a) Having the care and control of a child of the marriage, who is not yet 18 years old;
(b) Age or physical or mental incapacity to obtain employment; or
(c) Any other adequate reason.

3. Determination by the Court

In assessing a spousal maintenance claim, the Court will consider a wide range of factors,such as:

(a) The age and health of each party;
(b) The income, property and other financial resource of each party and their ability to gain employment;
(c) The individual commitments of each of the parties;
(d) The responsibilities of either party to support any other person;
(e) The eligibility of either party for a pension, allowance, or other benefit; and
(f) The standard of living that in all the circumstances is reasonable where the parties have separated.

As well as other factors found in Section 75 of the Family Law Act 1975.

4. Time Limitations for application

It is important to note that there are time limitations involved in any application to the Court. If you were married, you will have 12 months from the date of the divorce to make an application for spousal maintenance. If you were in a de facto relationship, you will have two years from the date of separation to make your application.

Should you fail to file your application within that time, you may seek leave from the Court to file your application out of time. However, without a good reason for filing late, it is unlikely that the Court will grant your leave to the late filing of the application.

If you seek to make a claim for spousal maintenance or want to if this is the right option for you, please contact our office for a free consultation.

 

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