When a relationship ends, money is often the first worry. Child support and property settlement get most of the attention. There is a third kind of financial support that is less well known. It is called spousal maintenance, or de facto maintenance for couples who were not married.
This guide explains what spousal maintenance is and who may be able to ask for it. It covers what a court looks at, the time limits and how payments can end. The information is general and based on official Australian sources. It is a useful base before you seek online legal advice about your own position.
What spousal maintenance means
Legal Aid Victoria describes spousal maintenance as money one former partner pays another to help with living costs after separation. It can be regular payments, a single payment or payments for a set period. It applies to married and de facto couples regardless of gender or sexuality. It is not meant to cover the costs of caring for children, which are dealt with through child support.
For married couples and most de facto couples, the law is the Family Law Act 1975. Section 75 deals with marriages and section 90SF deals with de facto relationships. Western Australia is different for de facto couples. There, the Family Court of Western Australia applies section 205 of the Family Court Act 1997.
Who may be able to get it
Maintenance can apply if you are separated or divorced, or if you have separated from a de facto partner. It can also apply if your marriage has been annulled. Legal Aid Victoria says the person asking must show they cannot cover basic living costs. These include rent, bills, groceries and medication.
The Family Court of Western Australia gives examples of when someone may not be able to support themselves. These include caring for a child under 18 or age or health limiting work. Another example is where the relationship affected a person’s earning capacity. Parents often weigh this alongside questions about mothers’ rights after separating from their child’s father.
Need and the ability to pay
The court looks at both sides of the equation. It considers the needs of the person applying and the other person’s capacity to pay. Legal Aid NSW makes the point that this is not automatic. A court will not order maintenance just because one person needs financial support.
Instead the court must look at the whole picture. According to Legal Aid NSW on going to court for spousal and de facto maintenance, it must consider the impact of any family violence. It must also weigh reasonable living expenses and whether the applicant can support themselves. The court then makes the orders it considers proper.
What the court considers
Every case turns on its own facts. There is no set formula for working out an amount. Legal Aid Victoria lists several factors a court looks at:
- the age and health of each person
- income, property and financial resources
- each person’s ability to work
- the standard of living that is reasonable in the circumstances
- who is caring for children
- the effect of any family violence
The Family Court of Western Australia adds a few more points for de facto cases. It looks at any duty either person has to support other people. It also considers whether either person qualifies for a pension, allowance or benefit that is not means tested. Another factor is whether a payment would let someone study or train to earn an adequate income.
Where children are involved, maintenance sits beside the parenting side of separation. Decisions about care and time are separate from money. Our article on how visitation rights are determined by a family court covers that side. Keeping the two issues clear can make each one easier to resolve.
Time limits apply
Time limits are one of the most important things to know. Married couples generally have 12 months from the date their divorce order takes effect. De facto couples generally have two years from the date of separation. If a marriage was declared void, the limit is 12 months from the decree of nullity.
A court can allow a late application in special circumstances. Legal Aid Victoria says you should get legal advice if the time limit has passed. Because the clock for married couples starts with the divorce order, it helps to understand the process for getting a divorce. Leaving things too long can close off options.
Agreeing without going to court
Many couples agree on maintenance without a contested hearing. Legal Aid Victoria says you can apply for consent orders in the Federal Circuit and Family Court of Australia. You can also make a financial agreement that includes maintenance or come to an informal arrangement. Maintenance can form part of a property settlement as well.
If you cannot agree, the usual first step is family dispute resolution, which is a form of mediation. The Family Court of Western Australia says most disputes should be tried this way before court. If you still cannot agree, you can apply to the court for an order. The order sets the amount and how often payments are made.
Types of orders and how they are paid
Legal Aid NSW explains that a court can make urgent, interim or final orders. Urgent orders cover support needed straight away. Interim orders cover support while the case is still being decided. Final orders set the longer arrangement.
Payments can be weekly, fortnightly or monthly. They can also be a lump sum or made through a transfer of property. Maintenance can run for a set period or have no end date. Property and maintenance are separate issues but both can be applied for at the same time.
The court usually deals with property first unless the maintenance application is urgent. That order of events matters for planning. Our article on whether your financial future is secure after divorce looks at the bigger money picture. Maintenance is one part of it.
When maintenance ends
Maintenance does not always last forever. Legal Aid Victoria says it ends if the person receiving it marries, unless a court order says otherwise. It also ends if the person paying dies. It may also end if circumstances change, such as a new de facto relationship or a rise in earning ability.
Ending or changing an order usually needs an application to the court. Legal Aid NSW notes that a maintenance order ends automatically if a party dies after it is made. A binding financial agreement is different and generally stays in force after a death unless it says otherwise. More detail is in Legal Aid Victoria’s guide to financial support from an ex partner.
Frequently asked questions
Can de facto partners ask for maintenance?
Yes, de facto partners can apply for maintenance. The time limit is generally two years from the date of separation. In Western Australia, de facto cases fall under the Family Court Act 1997. Elsewhere they fall under the Family Law Act 1975.
Is spousal maintenance the same as child support?
No, they are different. Spousal maintenance helps a former partner with their own living costs. It is not meant to cover the costs of caring for children. Child support is handled through a separate system.
Who pays the legal costs?
Each person usually pays their own legal costs. A court can order one person to pay some or all of the other’s costs if the circumstances justify it. Legal Aid NSW sets out the timing for asking for a costs order. A lawyer can explain how this might apply to you.
Can I apply after the time limit?
A court can allow a late application in special circumstances. You generally need the court’s permission to apply outside the limit. The outcome is never certain. Get legal advice quickly if you think you are out of time.
This article is general information about Australian family law and is not legal advice. Laws and processes differ between states and territories and change over time. Please speak with a qualified lawyer about your own situation.