Spousal maintenance: several matters to consider and no guaranteed benefits

Often when couples separate (either marriage or de facto) one party may not be able to adequately support himself or herself.  This is where spousal maintenance comes in.

Lack of work skills, caring for the children of the relationship, or health issues may prevent them from finding work.

In these circumstances the separated partner may apply for spousal maintenance.

Under the Family Law Act, spousal maintenance may be ordered when:

• One spouse is unable to adequately meet their own reasonable needs; and
• The other spouse has the capacity (after paying for their own reasonable needs) to pay maintenance to the other spouse.

Spousal maintenance is usually for a relatively short period of time after separation, from 2 to 3 years, to enable the spouse to retrain, re-establish themselves or find employment.

An application for maintenance must occur within 12 months of a divorce being final or within two years of separation under a de facto relationship.  If you do not apply within these time limits, you will need special permission from the court to proceed with an application but this permission is not always granted.

The court will consider several factors when assessing capacity to self support and capacity to support the other, including:

• Age and health of the party.
• Work skills and education level.
• Employment history.
• Obligation to care for children.
• A reasonable standard of living.

A party can only be ordered to support the other to the extent that he or she is reasonably able,  taking into account personal living expenses and other financial commitments.

Be careful about applying for support.  The Family Law Act gives a court a discretion to make such order as it thinks proper. There’s no guarantee that you’ll get what you want. And sometimes the costs of applying for maintenance outweigh the benefits.

For more information, contact our family law experts, Mr Stephen Rees or Mr Lindsay Brown.