For Better or For Worse, But Who Pays? Navigating Spousal Maintenance in Australia

Written by Nanki Kaur

Spousal maintenance is a type of financial support paid by one spouse to the other after separation or divorce. It is intended to provide financial assistance to a spouse who is unable to support themselves adequately after the end of a relationship.

In Australia, spousal maintenance is governed by the Family Law Act 1975 (Cth). The Act provides that a court may make an order for spousal maintenance if it is satisfied that:

1. One spouse is unable to support themselves adequately because of:

a) Their own circumstances, such as age, physical or mental health, or earning capacity;

b) The care of a child of the relationship under the age of 18 years; or

c) Any other relevant circumstances.

2. The other spouse has the capacity to pay spousal maintenance.

If these criteria are met, a court may make an order for spousal maintenance.

The amount and duration of spousal maintenance can vary depending on the individual circumstances of each case. Factors that may be considered include:

• The age and health of each spouse;

• The income, property, and financial resources of each spouse;

• The standard of living the spouses enjoyed during the relationship;

• The length of the relationship;

• Whether either spouse has the care of a child of the relationship under the age of 18 years;

• The ability of each spouse to earn an income and become self-sufficient; and

• Any other relevant circumstances.

Spousal maintenance may be paid in a lump sum or periodic payments. If periodic payments are ordered, the amount and frequency of the payments will be specified in the court order.

It is important to note that spousal maintenance is not automatic and must be applied for. Either spouse may apply for spousal maintenance at any time after separation or divorce, but it is generally recommended to do so as soon as possible.

In the case of Mallet & Mallet [2019] FamCA 29, the court ordered spousal maintenance. The parties had been married for 20 years and had two children. The wife had stopped working to care for the children and had not worked for many years. The husband was a successful businessman with a high income.

The court found that the wife was unable to support herself adequately because she had not worked for many years and did not have the skills or qualifications to obtain meaningful employment. The court also found that the husband had the capacity to pay spousal maintenance.

The court ordered the husband to pay the wife spousal maintenance in the amount of $1,200 per week for a period of five years. The court considered the wife's age, health, earning capacity, and the standard of living the parties had enjoyed during the marriage when making this order.

This case illustrates how spousal maintenance can be ordered in situations where one spouse is unable to support themselves adequately after separation or divorce. The court will consider a range of factors when deciding whether to make an order for spousal maintenance, and the amount and duration of the maintenance will depend on the individual circumstances of each case.

If you are considering applying for spousal maintenance, it is recommended that you seek legal advice. A family law lawyer can assist you with determining whether you are eligible for spousal maintenance and can help you to prepare your application.