Who needs to pay spousal maintenance?

By Elizabeth Pathmaraj, Lawyer

Family separation can be expensive. Suddenly there are two households to support and another set of furniture to buy.

When considering this expenditure, most people going through a separation will want to know – Am I entitled to receive spousal maintenance? Or do I have to pay spousal maintenance to my former partner?

Spousal maintenance is a lump sum or periodic payment made by a former partner or spouse (paying party) to the other person (receiving party) for their financial support.

Spousal maintenance is separate and different to child support.

It applies whether the separating parties were married or in a de facto relationship.

A former partner or spouse can be required to provide spousal maintenance to the other party, if:

• The receiving party does not have sufficient income (excluding any means tested benefit) to reasonably support themselves.
• The paying party has sufficient income, after meeting their own reasonable living expenses, to be able to provide support to the receiving party.

When determining whether spousal maintenance should be paid, the following factors are usually considered:

1. The age and health of each of the parties.
2. The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.
3. The parties’ commitments that are necessary to maintain themselves or children of the marriage or relationship.
4. The responsibilities of each party to any other people.
5. Whether either or both of the parties are eligible for a pension, allowance or benefit, including superannuation.
6. What standard of living for the parties is reasonable in the circumstances.
7. How spousal maintenance may assist the receiving party to increase their earning capacity (such as through education or training).
8. The extent to which the receiving party has contributed to the income, earning capacity, property and financial resources of the liable party.
9. The duration of the marriage or relationship and the extent to which it has affected the earning capacity of the receiving party.

Who decides whether spousal maintenance must be paid and how much?

Spousal maintenance can be paid:

• By agreement between the parties. If appropriate, the agreement can then be formalised through consent orders or a binding financial agreement.
• By the court. If parties cannot agree whether spousal maintenance is payable, or how much spousal maintenance should be paid, a party may seek an order for spousal maintenance in the Federal Circuit and Family Court of Australia.

The amount of spousal maintenance paid will depend on the facts of the case. Unlike child support, there is no set formula to calculate spousal maintenance.

Spousal maintenance is a complex area of family law. It is important that before you agree to pay or make a claim for spousal maintenance, you obtain legal advice.

If you are separated (or considering separating) and would like advice about these issues, please contact us on (03) 8672 5222 to arrange an appointment with one of our family lawyers.