Spousal maintenance is ongoing financial support paid by one spouse or de facto partner to the other after separation or divorce. It provides financial assistance to a party who cannot adequately support themselves due to the breakdown of the relationship.
What is Spousal Maintenance?
Spousal maintenance is financial support paid by one former partner to another to help meet their reasonable living expenses. Under the Family Law Act 1975, spousal maintenance recognizes that relationship breakdown can leave one party financially disadvantaged and unable to support themselves adequately.
Eligibility for Spousal Maintenance
To be eligible for spousal maintenance, you must demonstrate:
- Inability to Support Yourself: Cannot adequately support yourself financially
- Reasonable Expenses: Have reasonable living expenses that cannot be met
- Relationship Breakdown: The need arises from the breakdown of the relationship
- Other Party's Capacity: The other party has the financial capacity to pay
Factors Considered in Spousal Maintenance
Courts consider various factors when determining spousal maintenance:
- Financial Resources: Income, assets, and earning capacity of both parties
- Reasonable Expenses: Living costs, accommodation, and other necessary expenses
- Age and Health: Physical and mental health affecting earning capacity
- Care of Children: Impact of caring for children on ability to work
- Standard of Living: Standard of living during the relationship
- Length of Relationship: Duration of marriage or de facto relationship
- Contributions: Financial and non-financial contributions made
- Education and Training: Need for retraining or education
Types of Spousal Maintenance
Spousal maintenance can take different forms:
- Periodic Payments: Regular ongoing payments (weekly, monthly)
- Lump Sum Payments: One-off payment instead of ongoing support
- Property Transfer: Transfer of assets in lieu of maintenance
- Temporary Maintenance: Short-term support during proceedings
- Nominal Maintenance: Small amount to preserve rights
"Spousal maintenance recognizes that relationship breakdown can create financial hardship and aims to provide transitional support while parties rebuild their financial independence."
Duration of Spousal Maintenance
The duration of spousal maintenance depends on various factors:
- Rehabilitative Maintenance: Support while developing earning capacity
- Compensatory Maintenance: Compensation for sacrifices made during relationship
- Needs-Based Maintenance: Support for ongoing needs due to age or health
- Defined Periods: Fixed terms with review provisions
- Until Further Order: Ongoing until circumstances change
Reasonable Living Expenses
Determining reasonable living expenses involves considering:
- Accommodation costs (rent, mortgage, rates)
- Food and household expenses
- Utilities and telecommunications
- Transport and vehicle costs
- Medical and health expenses
- Insurance premiums
- Clothing and personal expenses
- Children's expenses (if relevant)
Capacity to Pay Maintenance
The paying party's capacity is assessed by considering:
- Current income from all sources
- Earning capacity and employment prospects
- Assets and investment income
- Financial commitments and expenses
- Support obligations to other children
- Reasonable living expenses
- Age, health, and skills
Variation and Review of Maintenance
Spousal maintenance can be varied when circumstances change:
- Income Changes: Significant changes in either party's income
- Health Changes: Deterioration or improvement in health
- New Relationships: Remarriage or new de facto relationships
- Employment Changes: Job loss, promotion, or career changes
- Children's Needs: Changes in children's living arrangements
- Cost of Living: Increases in living expenses
Termination of Spousal Maintenance
Spousal maintenance typically ends when:
- The recipient remarries
- Either party dies
- A specified time period expires
- The recipient becomes self-supporting
- The payer becomes unable to pay
- Court orders termination due to changed circumstances
Enforcement of Maintenance Orders
If spousal maintenance is not paid, enforcement options include:
- Garnishee Orders: Direct payment from wages or bank accounts
- Charging Orders: Security over property
- Asset Seizure: Sale of assets to recover arrears
- Contempt Proceedings: Court penalties for non-compliance
- Departure Prohibition: Preventing overseas travel
Tax Implications
Spousal maintenance has specific tax consequences:
- Recipient: Maintenance payments are generally assessable income
- Payer: Maintenance payments are generally tax deductible
- Lump Sum Payments: May have different tax treatment
- Property Transfers: May attract capital gains tax
- Professional Advice: Tax advice recommended for complex arrangements
Agreements About Maintenance
Parties can make binding agreements about spousal maintenance through:
- Consent Orders: Court-approved maintenance orders
- Binding Financial Agreements: Private contracts about maintenance
- Maintenance Agreements: Specific agreements about ongoing support
- Separation Agreements: Comprehensive agreements including maintenance
Urgent Maintenance Applications
In urgent cases, interim maintenance can be sought:
- Pending final determination of maintenance claims
- When immediate financial hardship exists
- During property settlement proceedings
- To preserve the status quo while matters are resolved
Our Spousal Maintenance Services
At Jarrah Legal, we provide comprehensive spousal maintenance services including:
- Assessment of entitlement to spousal maintenance
- Preparation and filing of maintenance applications
- Representation in court proceedings
- Negotiation of maintenance agreements
- Variation applications for changed circumstances
- Enforcement of maintenance orders
- Advice on tax implications of maintenance arrangements
- Integration of maintenance with property settlements
Contact Jarrah Legal today to discuss your spousal maintenance needs and ensure you receive fair financial support during and after your relationship breakdown.