Many people do not realise that they may have to pay or be entitled to receive payments of spousal maintenance from their former partner.
Spousal maintenance is completely separate from child support or child maintenance. Whereas child support and child maintenance goes to the support of the children, spousal maintenance goes to the support of the former spouse.
Most are aware of the need to have a financial settlement. However, they mistakenly think that this applies only to the need to have a property settlement. In the appropriate case, the parties also need to consider whether there should be any arrangement for payment of ongoing spousal maintenance.
Importantly, spousal maintenance, and the concept of maintenance of the spouse, now applies throughout Australia in relation to both married couples and couples living in a de facto relationship. This article focuses on spousal maintenance as it applies to married couples.
In essence, spousal maintenance is the recognition in marriage of the mutual obligations of both parties to maintain each other.
It is of interest to note that spousal maintenance rights and obligations apply from the date of marriage and that parties do not have to actually be separated.
Unlike the right to obtain a property settlement, the right to obtain spousal maintenance is not automatic. The party applying for spousal maintenance must establish that they are unable to support themselves adequately and that the other party is reasonably able to provide them with support.
In considering whether to make any order in relation to spousal maintenance the courts will consider a range of factors including:
- the care and control of the children under the age of 18 years;
- the age and state of health of the parties;
- the capacity for gainful employment
- the income, property and financial resources of each of the parties;
- the commitments of each of the parties to support themselves and other persons;
- the eligibility of the parties for a pension, allowance or benefit;
- a standard of living in all the circumstances that is reasonable;
- whether payment would increase the earning capacity of the other party;
- the rights of any creditors;
- any contribution to the income, earning capacity, property and financial resources of the other party;
- the duration and impact marriage;
- the nature of cohabitation with any other person;
- the terms of any property settlement;
- the child support payable and being paid;
- the terms of any binding financial agreement;
- any fact or circumstances in the opinion of the court the justice the case requires to be taken into account.
It is apparent from this list that the court has a very broad scope to determining whether to award spousal maintenance or not. There are many factors that the court has to take into consideration. If you read the relevant Act, it identify whether or not spousal maintenance is payable and, if so, what spousal maintenance is payable in each individual case. Each case turns on its own facts. Each case is different. The level of spousal maintenance payable in each individual case will vary from case to case. It is important you obtain advice from experienced family lawyer to assess what amount of spousal maintenance be payable, if any. Unfortunately there is no such thing as a reliable spousal maintenance calculator, as the factors for consideration are too numerous.
At the heart of the assessment of spousal maintenance is an assessment of the parties’ respective incomes and reasonable expenses. The manner in which the courts will assesses the income and expenses of the parties varies depending on whether it is an urgent, interim or final application and the on the circumstances of the individual case. There are no two cases that will be assessed by the courts in the same manner. In one case an expense will be allowed and in another case that same expense will be disallowed. The case by case assessment by the courts of spousal maintenance creates a significant amount of uncertainty in each case.
There is no doubt that the courts regard that fault or bad conduct in the marriage does not disentitle a person to receiving spousal maintenance.
Once the courts have decided to make an order for spousal maintenance then the court has substantial powers and may do and may make any of the following orders:
- order the payment of a lump sum;
- order periodic payments;
- order the transfer of property;
- make a final order;
- make an order for a fixed term or for life or until further order;
- impose reasonable terms and conditions;
- make any other order which it thinks is necessary to make to do justice in the case.
Parties do not have to go to court to resolve a dispute or agreement in relation to spousal maintenance. Parties have a number of options are to sort out spousal maintenance arrangements by consent.
In some cases spousal maintenance is not important, but in other cases spousal maintenance is highly important. In Australia, the more traditional marital relationship, where one party is the breadwinner and the other party is homemaker and carer, is still regarded as the norm. Although that view is slowly shifting with time. Parties living in a traditional context will often have to address spousal maintenance issues upon separation, especially when one of the parties has the primary care of the children or has been out of the workforce for a significant period of time.
It is important to observe that parties have 12 months from the date of their divorce to obtain spousal maintenance. The courts may grant leave to apply out of time for spousal maintenance, but the applicant must establish special grounds.