In certain circumstances, a person may be required to pay their former spouse money on account of their immediate and/or ongoing maintenance. This is known as spouse maintenance, and should not be confused with the separate issue of child support or maintenance.
The court has the power to order that spouse maintenance be paid to a party on an urgent, interim and/or final basis. This applies to both married couples and de facto couples, including same sex couples.
The main purpose of spouse maintenance is to:
- assist a party in relation to their immediate financial situation; and / or
- adjust the parties’ finances to meet any disparity in their incomes or earning capacities, based on their respective needs.
Urgent or interim spouse maintenance orders may be made by the court (or agreed between the parties) pending further or final orders, and are usually made for a short, fixed-term period to meet the immediate needs of the recipient party until a final property adjustment is determined by the court or agreed between the parties.
Final spouse maintenance orders, when made, are usually operative for a period of one to three years, and are designed primarily to allow the recipient a reasonable opportunity to retrain, obtain employment (often after an extended period out of the workforce), and re-establish herself or himself. The term ‘final’ is therefore somewhat misleading in this context, because such orders are usually only operative for a relatively short period.
Final spouse maintenance orders are rarely made on an indefinite basis and, in any event, the party who is required to make the payments may apply to the court to have the orders varied, increased, decreased or discharged at any time.
A party will only be entitled to spouse maintenance if she or he can demonstrate:
- an inability to adequately support herself or himself, by reason of their earning capacity, capital or other sources of income; and
- that the other party is reasonably able to make the payments.
The three circumstances in which a need for maintenance may arise are:
- Where a party has the care of a child of the relationship who is under the age of 18 years;
- Where the age of a party, or their physical or mental incapacity, is an impediment to her or him obtaining gainful employment; or
- Any other appropriate reasons, having regard to the specific circumstances of the parties.
Spouse maintenance proceedings may be instituted at the same time or separately from an application for property orders, either:
- before divorce;
- after divorce, but subject to a 12 month time limitation;
- during a marriage; or
- after the breakdown of a de facto relationship (but not before the relationship has broken down).
We are able to advise you on whether you may either be entitled to receive, or be required to pay, spouse maintenance in the context of your specific circumstances. We understand the interpersonal difficulties which can arise when people are required to deal with this particular issue.
We can assist you by providing you with clear, succinct advice and representation in relation to your obligations and entitlements under the applicable spouse maintenance laws, including on an urgent basis.