What Is Spousal Maintenance?

& Am I Entitled To It?

A common question we get from people who are separated is:

My former spouse cut me off financially, how do I keep paying the expenses?

Which can be a tricky situation if it means you can't pay your own bills.

If you find yourself in a position like this - where you and your former partner have separated, and you can no longer adequately support yourself, then you may be entitled to a thing called spousal maintenance.

spousal maintenance

What is spousal maintenance?

Spousal maintenance is financial support paid by one person to their former spouse or de facto partner.

This is done in situations where one person is unable to adequately support themselves, and the other person has the capacity to support that person.

Is spousal maintenance different from child support?

Spousal maintenance is financial support for you or your former partner. It is not for your child. 

Child support however as you would expect is only for the child. 

Because they are two different things, you can actually claim both of them at once if you're entitled to both.

spousal maintenance

Why does one person have to support their former spouse or de facto partner when they are no longer together?

In the eyes of the Family Court, the end of a marriage or a de facto relationship does not end the responsibility you have to financially support one another. 

So if you are a party to a marriage or a de facto relationship, then you are liable to reasonably maintain the other party, if and only if the other party is unable to support themselves adequately.

Who is entitled to spousal maintenance?

You are only eligible for spousal maintenance if you were:

and you have applied within the relevant time limits:

  • within 1 year after the date of divorce if you were married; and
  • within 2 years of separating if you were in a de facto relationship.

You can only apply for spousal maintenance outside of these time limits if you have permission from the Court to do so. 

Along with this you must also pass the threshold test.

spousal maintenance
spousal maintenance

The Threshold Test

The threshold test involves two steps.

  1. 1
    You, the applicant, are unable to support yourself adequately; and 
  2. 2
    The payer (your former spouse/partner) is reasonably able to pay.  
spousal maintenance

Step 1: You, the applicant, are unable to support yourself adequately.

Now, step one isn't just about showing that you have a need for spousal maintenance. It's also about demonstrating your inability to meet that need yourself.

This might be due to an adequate reason, such as:

  • you have care of a child who's under the age of 18;
  • you are unable to gain appropriate employment due to your age or a physical or mental incapacity; or
  • another adequate reason the Court may consider. 

We often see maintenance in situations where parties have been together for a long period of time. One spouse has stayed at home and raised the children, and the other has gone out and worked.

At separation, one party may have been out of the workforce for 20 years, for example, and is unable to simply return without further training.

In this circumstance maintenance would be paid, for example:

  • pending the completion of a course; or
  • once a child reaches a certain age (e.g. once the child starts school) and that parent can get back into the workforce. 

So those are the common examples, but it's obviously not an exhaustive list.

spousal maintenance

Step 2: The payer (your former spouse/ partner) is reasonably able to pay.

Now you then have to show that the payer can afford to meet your needs.

So they have to have enough income or financial resources available to them to meet the need that you are claiming that you can't meet yourself. 

The Court will look at the pre-separation standard of living to determine whether the needs you are claiming are reasonable. However, this pre-separation standard of living is not automatically awarded.

If you enjoyed a standard of living considerably above average, you cannot necessarily claim that you should be able to maintain that level. Although, you should be in a similar standard to your former spouse.

For example, your former spouse might be the only source of income. During the relationship that income only had to finance one household. Now that you've separated, obviously that income has to finance the running of two households.

So in this situation you can't necessarily claim that things that you considered reasonable expenses during the relationship are now reasonable. But as mentioned before, you should be living to a similar standard as your former spouse.

spousal maintenance
spousal maintenance

Now that you have a rough idea about whether or not you are eligible for spousal maintenance, move on to "How to apply for spousal maintenance".

If you have any questions about your rights or eligibility for spousal maintenance give us a call on 1300 767 384.

We offer free, 15 minute phone consultations where you can ask any questions you may have. It'll also gives our qualified family lawyers an opportunity to give you further advice about your situation.

Alternatively, you can always email us at [email protected]

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