The conclusion of a relationship does not necessary conclude the responsibility upon spouses to continue to financially support each other.
In some circumstances, it is appropriate and necessary for spousal maintenance to be paid. From 2009 spousal maintenance has also become payable between de facto spouses.
Spousal maintenance is a separate legal right to property settlement and child support (which is payable for the support of children).
At Attwood Marshall we will provide you with practical and straightforward advice as to any potential claim for spousal maintenance and advise you as to the “costs vs. benefits” of making a Court Application specifically about spousal maintenance or including such a claim in any Court proceedings dealing with property settlement.
In general terms, spousal maintenance will be payable when:-
- One party is unable to support themselves from their income or other source of funds (such as money in the bank, or assets which can be sold such as shares); and
- The other party has the capacity to provide financial support either from their income or from a source of funds that they solely control.
Circumstances in which a party can be considered unable to support themselves include where they cannot work due to ill health or the care of young children. Further even if a party can work, if their income is insufficient (due to working part time only for health or family reasons), the Court may consider them unable to support themselves.
Income received from Centrelink is disregarded when considering the amount available to a party for their self support.
In considering what, if any, amount should be paid the Court will consider the “reasonable” weekly needs of each party and if after allowance for such “reasonable” weekly needs, there remains the capacity to pay support to the needy party, the Court can make such Order it considers appropriate.
Spousal maintenance Orders can be made on an urgent basis, to deal with short term financial support pending finalisation of property settlement matters and Orders can also be made on a final basis, to extend past the final judgment, to enable the needy party to have time to re-train and re-enter the work force or to otherwise invest funds or find a method for their self support.
As with property settlement, there are time limitations which apply to a claim for spousal maintenance. For married couples, this is 12 months from the date that any divorce Order becomes final and for de facto couples this is 2 years from the date of separation. Should you be close to this time limitation expiring or if it has expired and you still wish to discuss your options, then it is important that you contact us for legal advice without delay.
Frequently Asked Questions about Spousal Maintenance
What needs are considered “reasonable”
Reasonable weekly needs vary from case to case and take into account your individual circumstances. However at the most basic level, reasonable weekly needs can include:-
– Rent or mortgage payments;
– Car loan repayments;
– Petrol and car expenses;
– Insurances such as house, car and health insurance;
– Medical costs including pharmacy expenses;
– Telephone costs such as landline and mobile telephone;
– Internet access;
– Household utilities such as electricity, gas and water;
– Children’s entertainment expenses; and
– Household maintenance costs.
It is important that you are realistic in making a claim for spousal maintenance and remember that it is a claim for support for your “needs” not your “desires”.
What kind of supporting information do I need to provide if I am wanting to claim / if I am responding to a claim for spousal maintenance?
In order to establish what your income is, we would ask you to provide copies of your payslips (if you work), contract of employment, Centrelink Statements and any document which evidences any money or other “saleable” assets that you hold, such as bank statements, share certificates etc.
In order to establish what your weekly needs are, we would ask that you gather copies of tax invoices for your household utilities such as electricity, gas, telephone and internet, rates and water.
Other documents such as your lease agreement to evidence rent, mortgage statements to evidence your repayments and bank statements to evidence the amounts spent on groceries, direct debits for insurance payments etc.
If you are responding to an Application for spousal maintenance, it is important that we evidence those expenses that you are already meeting on behalf of the claiming party and all of the above documents apply equally to responding to a claim for maintenance.
How long will maintenance be payable for?
The answer to this question will depend on the individual circumstances of your matter. Ultimately the Court is expected to bring finality to the financial relationship between spouses and partners and indefinite spousal maintenance Orders are extremely rare because of this.
In lieu of indefinite Orders, a Court can make an Order for a lump sum amount of spousal maintenance to be payable from the other parties property settlement entitlement.
Failing a lump sum Order being made, the Court will define the period for which maintenance will be paid or received therefore expecting a party to use that period of time and the maintenance payable to assist in their support and re-establishment in the work force or otherwise enabling their support whilst they commence investment of monies received at property settlement.
If you require further information, please contact us on 1800 621 071 or email [email protected].