Relationship breakdowns can affect parties unevenly. Spousal maintenance Australia is designed to help parties who are unable to support themselves. Financial support may be available to married couples and people in a de facto relationship under the Family Law Act.
Here at Andrews Family Lawyers, situated in the bustling Gasworks Plaza of Newstead, we’ve spent over two decades walking alongside families in Brisbane’s inner north as they navigate these challenging waters. One of the most common, and often misunderstood, aspects we encounter is spousal maintenance. Here’s your guide to determining your eligibility and how to apply.
Key takeaways
Beyond the Myths: What Spousal Maintenance Truly Is (and Isn't)
Many people, understandably, confuse spousal maintenance with child support. Let’s be clear: they are distinct. Child support, managed by Services Australia, is squarely focused on the children – their education, their health, their daily needs. Spousal maintenance, on the other hand, is about the former partners themselves. It’s a mechanism under the Family Law Act designed to support a spouse who, after separation, genuinely cannot meet their own reasonable living expenses.
We often explain it this way: imagine one partner has dedicated years to raising a family, sacrificing their career progression. Suddenly, post-separation, they find themselves without the immediate means to support themselves. Spousal maintenance steps in to prevent undue hardship, allowing that individual time to retrain, find employment, or simply adjust to their new financial reality. It’s not a punitive measure; it’s a practical one, aimed at achieving a fair and equitable outcome for both parties.
Who is it for?
Spousal maintenance is meant to support a partner who can’t meet their reasonable living expenses. What constitutes “reasonable needs” is a question we grapple with daily for our clients across Newstead, Teneriffe, and the wider Brisbane inner north. For our clients, this often means covering:
Housing: Rent or mortgage payments for a home in the local area.
Daily Essentials: Groceries, utility bills, and basic household costs.
Health: Necessary medical expenses and personal healthcare.
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What spousal maintenance typically doesn't cover
Some spouses can misunderstand what spousal maintenance arrangements can realistically cover. The critical point to remember is that the payments only relate to living expenses that the Federal Circuit and Family Court of Australia (FCFCOA) considers reasonable. Here are some expenses you shouldn’t expect to get covered:
Luxurious spending: Extravagant holidays and fine dining aren’t usually considered reasonable expenses. One caveat is that the FCFCOA considers the standard of living experienced during the relationship. This means that the definition of ‘reasonable’ can vary case by case.
Business and investments: Maintenance orders generally wouldn’t cover these expenses because the payments are meant for living costs, rather than work-specific costs.
Legal fees: Legal costs are also not usually eligible. However, receiving maintenance as a lump sum or getting an interim property order may potentially help cover legal fees.
Need vs. Capacity
At its core, spousal maintenance hinges on two fundamental pillars: one party’s need and the other’s capacity to pay. It’s a delicate balancing act, and it’s where Peter Andrews’ two decades of experience truly shine. We don’t just look at numbers; we look at lives.
We consider factors that might contribute to your need, such as:
Age and Health: An older client, or one facing significant health challenges, might have a reduced capacity to earn.
Parental Responsibilities: If you’ve been the primary caregiver for children, your career might have taken a backseat, impacting your earning potential.
Retraining and Education: Sometimes, a period of support is needed to gain new qualifications, allowing you to re-enter the workforce effectively.
Impact of Family Violence: Sadly, we often see cases where family violence has severely impacted a person’s ability to work or manage their finances. This is a critical factor the Court considers.
On the flip side, we also meticulously assess your former partner’s capacity to pay, ensuring that any order made is realistic and sustainable for both parties. It’s about achieving a just and equitable outcome, not creating new hardships.
Married and de facto eligibility and time limits
Married couples and de facto couples have the same eligibility requirements. While support paid between unmarried couples is technically called de facto maintenance, it works in the same way.
The two criteria the FCFCOA looks at are:
One party can’t adequately support their reasonable living needs.
The other party has the capacity to pay maintenance after covering their own reasonable expenses and financial obligations.
The Court considers various factors to determine the needs of the applicant and the capacity of the respondent. No single factor will guarantee maintenance is approved. However, some issues that generally support an application include:
Older parties often have a stronger case for support. But this depends heavily on their other circumstances.
Facing health issues that affect your ability to support yourself.
A reduced earning capacity due to spending a long time out of the workforce.
A need to undergo additional training for work qualifications.
Having caring responsibilities for a child or another dependent.
Having limited access to assets and financial resources.
Experiencing family violence, which has impacted earning capacity.
The Court usually requires applications for spousal maintenance orders to be started within 12 months of a divorce order taking effect. De facto maintenance applications should generally be started within two years of the couple’s separation date.
You may submit an application outside of this timeframe with the Court’s permission. However, these cases are only granted in limited circumstances.
Urgent and interim maintenance
Life doesn’t pause for legal proceedings. If you find yourself in immediate financial distress, unable to cover basic living costs, the FCFCOA can provide temporary relief:
Interim spousal maintenance
Interim maintenance is generally used to support a party while the Court is overseeing a property order application. Both parties get the opportunity to present evidence through an affidavit, and the Court looks at a broad range of factors.
Urgent spousal maintenance
An urgent order allows the FCFCOA to make a temporary maintenance order quickly during a court proceeding. Urgent orders may be granted before all evidence is available, so a decision can be made as soon as possible. However, the applicant needs to have convincing evidence that their situation is dire.
Circumstances where this could be an option include:
You have primary caring responsibilities for a child, but don’t have any income to support yourself with.
You’re suffering from an illness or living with a disability that prevents you from having employment.
At Andrews Family Lawyers, our philosophy is to resolve matters efficiently and with minimal conflict. We’re proud that over 95% of our cases settle without the need for a final court hearing. This commitment to negotiation and mediation saves our clients not only significant legal costs but also immense emotional strain, allowing them to focus on rebuilding their lives.
How the amount and duration are decided
There isn’t a fixed formula for determining how much maintenance a spouse or former de facto partner should pay. Any calculators you find online that claim to be able to give you a definite figure based on your inputs shouldn’t be relied on.
The Court treats every case on its own merits. The decision is guided by an assessment of each party’s needs and capacity, along with their life circumstances. The arrangement could be for periodic payments or a lump sum.
The duration of the maintenance is also determined on a case-by-case basis. An order could include a set number of months or years. This type of shorter-term order generally serves to support a party until they can achieve financial independence. This may help parties who are:
Recovering from an illness.
Completing retraining for employment.
Finding a suitable job.
It’s uncommon for maintenance orders to be long-term. The Court might consider making long-term arrangements in special circumstances, such as when there are very limited assets to divide, but one party has a significant income.
Unless otherwise specified, maintenance orders often end when the payee enters a new de facto relationship or remarries. They can also be terminated if the person paying spousal maintenance has a significant change in their financial circumstances, such as losing employment or retiring.
How to apply for spousal maintenance
If you believe you’re eligible to receive spousal maintenance payments, these are the typical steps you’ll go through. While maintenance can often form part of a property settlement, seek legal advice before making any major decisions.
Check if you’re eligible. Getting professional advice can help you accurately assess whether you have a reasonable chance of getting maintenance. This can involve discussing your finances and various aspects of your life circumstances.
Disclose all information about your financial situation. This is going to be important as the basis for negotiations and for the Court to make its decision.
Meet with your former partner to negotiate a proposal. Both partners should exchange financial information so the discussion is transparent. This can cover details about the size of the payments and the duration of the arrangement.
Your spousal maintenance lawyer can discuss with you the best way to formalise the agreement. Consent orders are a common option. However, it can also be included in a binding financial agreement.
If you’re not able to make an agreement, the final option is to take the matter to court. A family lawyer can prepare you for the process, which can include:
Filling out an initiating application with supporting evidence.
Serving the application on the other party.
Attending court to argue your case.
Rebuilding Your Life, One Step at a Time
Spousal and de facto maintenance orders can be very important to a person’s financial future. However, they’re also an often underserved area of family law. Understanding what maintenance covers and the process to get it can make the path clearer to seeking maintenance.
Are you looking for legal advice?
Separation is a profound life change, but it also presents an opportunity for a new beginning. At Andrews Family Lawyers, we are more than just legal advisors; we are your trusted partners in this journey. Our convenient location in Newstead, with easy parking and access from the Inner City Bypass, makes us readily available to families across Brisbane’s inner north.
Don’t let financial uncertainty define your next chapter.
Reach out to Peter and Lisa Andrews and our dedicated team today. Call us directly on (07) 3062 9493 or book your free initial consultation online. Let us help you secure the financial stability you deserve, so you can focus on rebuilding your life with confidence and dignity.
Email: reception@palawyer.com.au
