Under the Family Law Act 1975, each party has a duty to maintain the other party to the extent that he or she is reasonably able to do so. Before a party can receive spousal maintenance, two conditions must be met:
- That the party seeking the maintenance is unable to support themselves; and
- That the party to pay the maintenance has the capacity to do so.
In determining whether and how much maintenance should be paid, the Court will consider, among other things:
- The party's age and capacity to work;
- Who has care of children (under 18 years old);
- The income and earning capacity of each party;
- Any health matters which might effect an ability to work;
- A reasonable standard of living for the parties in all of the circumstances.
The Court does not count income from Centrelink when assessing if support is needed i.e. if Centrelink income is the only income, that person will be considered as having no income for the purposes of the spousal maintenance application.
If the financial situation changes, Orders are able to be varied to reflect the new arrangements, such as if the person obtains different employment, or remarries.
Periodic spousal maintenance
A court may order a party pay the other spousal maintenance over a set time frame, such as until the children are old enough to go to school and the other party can re-enter the workforce, or to assist the applicant to study or pursue training towards gainful employment
Lump Sum spousal maintenance
This is often considered a better arrangement, as it allows parties to have a "clean break" without being dependant on each other for an extended period of time.
An application for spousal maintenance can be made at any time after separation. The time limit that applies after Divorce (12 months) also applies to spousal maintenance applications.
Please contact us should you wish to discuss any of the above.