Spousal Support in Australia is defined as the recognition of the mutual obligations of both parties in a marriage or de facto relationship, to maintain each other.
Spousal Support in Australia can also be termed as Spousal Maintenance. Spousal Maintenance is the term used for the financial support that an individual is required to give to their former partner, following the separation or breakdown of their marriage.
Under the Family Law Act 1975, it is the responsibility of a person to financially assist their spouse or de facto partner, in cases where the partner is unable to meet their own financial expenses.
In general, both parties have the duty to support and maintain each other as far as they can. In certain cases, this obligation can continue even after divorce and separation. The extent of Spousal Support in Australia depends on what the other party can afford to pay.
Spousal Support in Australia is not the same as Child Support or Child Maintenance. If the Court sees it fit to do so, the Court might order that both Child Support and Spousal Support are paid simultaneously.
Spousal Support can be in the form of one or more of the following: –
- Periodic payments
- Payment of ongoing expenses
- A lump sum payment
- Use of an asset such as a vehicle or living in the family home until the property settlement
- Payment of a certain one-off expense
The Application Process for Spousal Support
Generally, following the breakdown of a relationship, the concerned parties can come to an arrangement wherein one party provides Spousal Support or Maintenance to the other party.
In cases where an agreement cannot be reached, one party can apply to the Court to receive an order of Spousal Support or Maintenance.
While applying for Spousal Support, the application can either seek for payments only, or it can also seek an application for property orders (in case of property settlement) at the same time.
What does the Court consider?
Essentially, the Court considers two factors in making decisions about Spousal Support. These are the needs of the applicant and the respondent’s capacity to pay.
The applicant is the person applying for spousal support, i.e., the one who is entitled to receive spousal support in Australia. The respondent is the party who provides spousal support.
Apart from this, the Australian Court follows certain criteria: –
- The applicant and respondent are separated, but still married.
- The applicant and respondent were married but divorced less than 12 months before applying for spousal support.
- The applicant and respondent were in a de facto relationship and were separated less than 24 months before applying for spousal support.
How is Spousal Support calculated in Australia?
The Court needs to make sure that providing Spousal Support does not cause financial strain to the respondent. As stated in Section 75(2) of the Family Law Act 1975, in calculating Spousal Support the court takes the following things into consideration
- The age of each spouse
- Who has care of children/ a child, and if any of them are under 18 years of age
- Physical health and mental capacity of each person to gain or continue employment
- Standard of living
- Commitments of each party to support themselves and/or other people
- Eligibility for a pension that is not an income-tested pension
- If the person applying for support has contributed to the income, earning capacity, property and financial resources of the other person
- Duration of the relationship and any impact it has had on the earning capacity of the spouse applying for maintenance.
- Whether either spouse is living with another partner or spousal and, if so, the financial situation of the other partner or spouse
- Whether maintenance would allow the recipient to fund an education or training to gain employment or establish a business to support themselves in the future
- If a spouse wishes to continue being a carer for their children
- Any child support currently being paid or may need to be paid in the future
Any other circumstances that may need to be considered.
How long will Spousal Support need to be paid for?
Spousal Maintenance can be paid for a period until when the receiver is able to re-establish themselves in the workforce in order for them to be able to support themselves.
This means that the period for which payments need to be made will vary from case to case, depending on the spouse’s individual circumstances and needs.
Can you lose Spousal Support in Australia?
Any change in circumstance might result in the spousal payments being stopped. For instance, if the recipient enters a de facto relationship, they will no longer be eligible to receive regular payments. Additionally, if the recipient is able to support themselves financially, then they no longer need to receive maintenance payments.
On the other hand, if the payer has lost their job, or if there has been an income reduction, then they can apply to the Court to either discharge or vary the maintenance award.
Importance of seeking legal advice
Because of the complicated nature of Family Law, it is advisable for everyone to seek legal advice when dealing with Spousal Support in Australia.
When making a claim for Maintenance in Court, you need legal guidance to prepare your application for claim properly. The Court has a variety of different factors to consider while approving or rejecting a claim. Each case is dealt with in a different manner, depending on the unique circumstances of each individual.
Our expert lawyers at JB Solicitors have the experience of dealing with cases such that they provide tailored advice guidance, to ensure that the client gets the best possible outcome.
Regardless of whether you are applying for a claim or resisting a claim of Spousal Support, you need legal advice to make a strong application.
Contact JB Solicitors to get valuable advice on family law matters such as Spousal Support in Australia.
