Separation can be a challenging and emotional time, particularly when it comes to financial matters.
One key consideration for many separating couples is spousal support, also known as spousal maintenance. Understanding your rights and obligations regarding maintenance after separation is crucial to ensuring financial stability for both parties.
This article will provide an in-depth look at spousal support laws, the eligibility criteria, application process, and factors affecting the amount and duration of payments.
These laws apply whether you live in Brisbane, Queensland or elsewhere in Australia as the legislative regime is federal and enforced by the Federal Circuit and Family Court of Australia.
What is Spousal Support?
Spousal support, or spousal maintenance, is financial assistance that one spouse may be required to pay to the other following a separation or divorce.
The purpose of these payments is to ensure that the lower-earning or financially disadvantaged spouse can meet their reasonable living expenses if they are unable to do so independently.
Unlike child support, which is mandated by law and calculated using a specific formula, spousal maintenance is determined on a case-by-case basis. The courts consider various factors when assessing whether one spouse is entitled to support and how much should be paid.
Who is Eligible for Spousal Maintenance After Separation?
In Australia, spousal maintenance is governed by the Family Law Act 1975. To be eligible for maintenance after separation, an applicant must demonstrate that they are unable to adequately support themselves financially. This may be due to factors such as:
Age or health issues that prevent them from working
Care of young children from the relationship
A lack of skills, education, or work experience
Financial disparity between the parties
The spouse being asked to pay maintenance must also have the financial capacity to do so. If both parties are struggling financially, the court may not grant an order for maintenance.
How is Spousal Support Calculated?
There is no set formula for calculating spousal support payments. Instead, the court considers various factors, including:
Each party’s income, assets, and financial resources;
Their age and health status;
Their ability to earn an income;
The duration of the relationship and the contributions made by each party;
The standard of living enjoyed during the marriage;
The financial impact of caring for children.
The court aims to ensure fairness, meaning that any order for maintenance will be based on the unique circumstances of the couple involved.
Spousal maintenance is generally not intended to be a permanent arrangement. The court may grant it for a fixed period, allowing the receiving spouse time to gain employment, complete education or training, or otherwise become financially independent.
However, in some cases, ongoing maintenance may be granted if the receiving spouse has long-term financial needs.
How to Apply for Spousal Maintenance
If you believe you are entitled to spousal support, you can negotiate an agreement directly with your former partner or apply for a court order. The steps include:
Negotiation and Mediation: Many couples resolve financial matters amicably through informal negotiations or mediation. A compliant and enforceable written agreement can then be drafted by their solicitors to outline the terms of maintenance payments.
Filing a Court Application: If an agreement cannot be reached, you may need to apply to the Federal Circuit and Family Court of Australia for a spousal maintenance order. The court will review your financial situation and determine whether maintenance should be granted, how much should be paid, and for how long.
It is important to note that there are strict time limits for applying. Generally, if you were married, you must apply within 12 months of your divorce becoming final. If you were in a de facto relationship, you must apply within two years of the relationship breakdown.
Can Spousal Maintenance Be Changed or Terminated?
Yes, spousal maintenance orders are not ‘set in stone’ and can be varied or terminated if circumstances change. Examples include:
The recipient remarries or enters a new de facto relationship;
The recipient gains employment or financial independence; or
The payer experiences financial hardship and can no longer afford payments.
Either party can apply to the court to have the maintenance order reviewed if significant changes occur.
What Happens if Spousal Support Payments Are Not Made?
If a party fails to comply with a spousal maintenance order, the recipient can take legal action to enforce the payments.
There are fairly wide reaching powers to enforce maintenance orders and may involve applying to court to obtain an order for specific payment, garnishing the payer’s wages or bank account or sale of assets to recover unpaid amounts.
Non-compliance can result in penalties, so it is crucial for both parties to adhere to court-ordered maintenance obligations.
Seeking Legal Assistance
Navigating spousal support laws can be complex, and seeking legal advice is often essential to ensure that your rights are protected. A family lawyer can help you understand your entitlements, negotiate agreements, and represent you in court if necessary.
Spousal maintenance plays an important role in ensuring financial fairness after a relationship breakdown but can also be difficult to navigate after an agreement has been reached or orders determined by the court.
If you are seeking or contesting spousal support, understanding the legal framework and seeking professional legal advice can make a significant difference in achieving a fair outcome.
Need Legal Advice? Contact Drakos & Company Solicitors Today
If you require assistance with spousal maintenance or any other family law matters, Drakos & Company Solicitors can provide legal guidance tailored to your situation. Contact us today for a consultation to discuss your options and secure your financial future.