Family Law Blog

Spouse Maintenance - Am I entitled to it, or will I have to pay it?

Posted by Malcolm Gittoes-Caesar on 17 Mar 2015

The way in which families arrange their affairs stereotypically result in one party earning a higher income than the other. Upon separation, when the party who does not earn a significant income no longer has the use of the other party’s income to meet expenses, often those expenses will go unpaid unless the other party provides financial assistance.

Assistance that is provided from one separated person to another to assist them in meeting their expenses is referred to as spouse maintenance. It is distinct from child support, being amounts of money that one parent pays to another to assist with the care of the children. It is designed, as the term "spouse maintenance" suggests, to maintain a spouse upon their separation and ensure that they are not financially disadvantaged during the process of separation, and often for a period of time afterwards.

In general terms, for a Court to make an Order that requires one person to pay spouse maintenance to the other, they must be satisfied of two things. The first is that the person that would be ordered to pay spouse maintenance has the "capacity" to pay it. Therefore, if their necessary expenses are such that there are no excess funds, then it is unlikely that a Court would order them to pay spouse maintenance to the other party. The other consideration of the Court is whether the other party receiving spouse maintenance has "need". Need, as the term suggests, indicates that a person is not able to meet their expenses but for the receipt of additional funds from their spouse to pay those expenses.

Within the context of capacity and need, Section 72 of the Family Law Act provides that a party to a marriage is liable to maintain the other party, to the extent that they are reasonably able to do so, if the other party is unable to support herself or himself adequately whether by reason of having care and control of a child under the age of 18, by reason of age or physical or mental incapacity for appropriate or gainful employment, or for any other reason. The Court has regard to a number of matters in Section 75(2) of the Family Law Act which include, but are not limited, to the following:

  • The age and state of health of each of the parties;
  • The income, property and financial resources of each of the parties;
  • Commitments of each of the parties that are necessary to enable the party to support himself or a child;
  • A standard of living that in all the circumstances is reasonable;
  • The duration of the marriage and the extent to which it has effected the incoming capacity of the party whose maintenance is under consideration

There are a number of other considerations that a Court will have regard to under Section 75(2) that have not been reproduced in this article, but which impact upon the likelihood or otherwise that a party will be liable for spouse maintenance to the other.

Those spouse maintenance orders can be put in force until such time as a property settlement occurs. However, if the income of one person is large and the property pool is small, then it is not unusual for spouse maintenance orders to be made for a number of years after property settlement has been affected, often, for example, until such time as the recipient of the spouse maintenance re-partners.

If you are unsure whether you are either entitled to spouse maintenance, or liable to pay spouse maintenance to your separated partner, please do not hesitate to contact our Accredited Specialist: