What is spousal maintenance in Perth or Australia?
Spousal maintenance is the weekly maintenance payable by one spouse from their income to support the other spouse. Spousal support is the recognition in a marriage or de facto relationship of the mutual obligations of both parties to maintain each other.
Many people do not realize that they may have to pay or be entitled to receive payments of spousal support from their former partner.
Spouse maintenance is completely separate from child support or child maintenance. Child support and child maintenance are paid for the support of the children. Spousal maintenance is paid for the support of the former partner.
Importantly, spousal maintenance, and the concept of maintenance of the spouse, applies throughout Australia.
What is alimony? And is alimony payable in Perth or Australia?
Alimony is an American legal concept and term. The law applicable to alimony is completely different. In Australia the legislation does not use the term alimony. Instead the legislation refers to the term maintenance. Parties are able to potentially claim maintenance from each other in Australia. The circumstances in which maintenance is payable in Australia are completely different to when alimony is payable in the US.
Does maintenance apply in a de facto relationship?
Both married couples and couples living in a de facto relationship are potentially able to claim maintenance in Australia. The grounds to claim maintenance are essentially the same whether you are married or living in a de facto relationship. Many people seem surprised by this and do not know the maintenance may be payable simply because they are living with some body.
What is the difference between spousal support and property settlement in Australia?
A property settlement relates to the division of the property (as opposed to income) of the parties upon separation. Most people are aware of the need to have a financial settlement in Australia after separation. However, most people 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 support.
When is spousal support payable in Perth or Australia?
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 wide 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.
The facts that the courts may take into account are not limited or closed. The courts have a very wide discretion.
Is there a online spousal maintenance calculator in Australia?
There is an online child support calculator provided by the Child Support Agency. You can use that calculator to calculate the basic rate of child support payable. There is no reliable online spousal maintenance calculator in Australia. You cannot rely on any online calculator as the factors to consider are too numerous and the legislation is discretionary.
How can I calculate spousal maintenance?
There is no such thing as a reliable online spousal support calculator, as the factors for consideration are too numerous.
You can calculate the spousal support payable by using the following steps.
- Work out your taxable income.
- Work our your child support payable, if any.
- Get your accountant to confirm your income tax.
- Add up your reasonable expenses.
- Prepare a detailed budget showing your income and expenses over the next 6 to 12 months.
- Do the same for the other party.
- Consult an experienced family lawyer with the above information. We are experts in child support and maintenance. We can advise you whether spousal maintenance is payable and if so how much. We offer a reduced fee initial consultation so that you can obtain no-obligation advice that you can rely on.
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.
Do I need a family lawyer to calculate spousal maintenance?
It is highly recommended that you obtain advice from an experienced family lawyer before you claim or pay spousal support.
It is apparent from the discussion above, 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 legislation, it will not 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.
Is fault taken into account?
Does it matter who separated? Or, does it matter if a spouse was unfaithful? Or, do the reasons for separation matter? There is no doubt that fault or bad conduct in the marriage does not get taken into account in calculating spousal support. In Australia there is a no fault based system.
What orders can a court make?
Once the courts have decided to make an order for spousal support 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.
Do you have to go to court to get spousal support?
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 orders or a binding financial agreement.
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.
What time limits apply?
It is important to observe that parties have 12 months from the date of their divorce to obtain spousal maintenance. De facto couples have 24 months from the date of separation. The courts may grant leave to apply out of time for maintenance, but the applicant must establish special grounds, which may not apply. See our previous post about time limits in family. You must not ignore the time limits.
Do you want more information about family law or spousal maintenance?
If you are seeking more information about spousal maintenance, then we recommend that you also read our informative posts about divorce, child support and property settlement. The Family Court of Western Australia also provides a summary of information about spousal support.