Spousal Maintenance - Am I Entitled?

Spousal Maintenance - Am I Entitled?

When can a person apply for spousal maintenance?

To obtain spousal maintenance from your ex, you will need to show that you have a need and that your ex has the capacity to pay.

Meet Amanda and Wade

Amanda and Wade have separated. Wade was the ‘bread winner’ and Amanda was a stay-at-home mum working part-time in a position that required no qualifications.

Amanda and Wade have separated, and she is earning $30,000 per year. Wade earns $150,000 per year. 

Wade is paying child support, But Amanda is struggling to pay the bills.

Can Amanda seek additional financial support by way of spousal maintenance after separation?

How does the law apply to this situation?

If Amanda can show she has a need, and Wade has the capacity to pay, then yes, Wade can be asked to provide Amanda financial support. 

How do you work out if Amanda has a need?

The rule of thumb is:

If Amanda’s weekly income is less than her reasonable weekly expenses = she has a need.

To determine this, Amanda should: 

1. Identify her income.
2. Identify all her reasonable expenses. She should make a list and ensure she doesn’t overlook anything.
3. Exclude expenses that are unreasonable.
4. Estimate Wade’s income.

Amanda’s income is $600 a week (based on $30,000/year) and her expenses are $950 a week. There is a $350 a week shortfall. Does this mean Amanda has a need for $350/week?

What is the Applicable Law?

The Family law Act 1975 (Cth)  allows the Court to make orders that can require your ex to continue to provide you with financial support so that you can meet your reasonable expenses. 

To determine if Amanda’s expenses are reasonable, the Court will consider her:

• Age and health
• Income, property, and financial resources
• Ability to work
• Suitable standard of living.

The Court will also consider if:

• Her marriage/relationship has affected her ability to earn an income, and 
• If she has children under the age of eighteen and who the children live with.

The amount of financial support that Wade would need to pay will also depend on his capacity to pay – ie. what he can afford to pay. 

After payment of child support, Wade may only be able to pay $200 a week by way of spousal maintenance - not the $350 that Amanda $350 needs (her shortfall). The Court may make an order that Wade pay $200 a week spousal maintenance to Amanda.

Fairness

Orders need to be fair. The Court will try to treat both parties fairly. 

Sometimes a person’s ability to earn an income is affected because of the marriage or defacto relationship.

For example, one parent may have been out of the workforce for an extended period looking after children and maintaining the household. Getting back into the workforce will be more difficult for them as they have been out of the workforce for a lengthy period. Retraining might be required, particularly if they are looking for a higher income. The Court will take this into consideration when making orders.

Time Limits

There are time limits for applying for spousal maintenance. 

• For married couples – you must apply to the Court within 12 months of your divorce becoming final; and 
• For de facto partners – you must apply within 2 years of your relationship ending.

If you do not apply within these time frames, then you will need to ask the Court for permission (or leave of the Court) to seek an order. There is no guarantee the Court will give permission. If you are in this situation, I would recommend you seek advice from an experienced family lawyer as soon as possible. 

How long do Spousal Maintenance orders last?

It would not be fair for someone to receive spousal maintenance from their ex, indefinitely.

When orders are made, time frames are usually included. Payment may be for a defined period and/or the order may be conditional upon you undertaking training/studies. 

If you remarry, you are not entitled to spousal maintenance unless the Court says otherwise. 

If you commence a new de facto relationship, the Court can also take into account the financial relationship that exists between you and your new partner. It may be the case that financial support you receive from your new de facto means that you can no longer show that you have a need for financial support/spousal maintenance from your ex. 

Do I need to go to Court to get a Spousal Maintenance Order?

Some separated couples can agree to spousal maintenance orders. However, not everyone will agree to payments of spouse maintenance. 

Realistically, the person required to pay the spouse maintenance may be unhappy about feeling forced to provide financial support, particularly if the end of the relationship has left a sour taste in their mouth.

If agreement can’t be reached, you may need to apply to the Court for an order. If you are in this situation, I would recommend you seek advice from an experienced family lawyer as soon as possible.