What is spousal maintenance in a Australia?

Spousal maintenance in Australia is when a separated person has a responsibility to financially support their former partner if they cannot meet their own reasonable expenses from their personal income or assets. This is known as de facto maintenance, or simply maintenance, in the case of a de facto couple. This obligation can continue even after separation and divorce. The extent of the financial support depends on the capacity of one person to pay to satisfy the need of the other person.

There are two considerations to maintenance (1) the financial needs of one person and (2) the other person's capacity to pay, which are determined by considering the following:

• Age and health.

• Income, property, and financial resources.

• Capacity for paid employment, including whether the relationship has affected the ability to earn an income.

• The care of a child or children of the relationship, including the need to provide appropriate housing.

• The effect of any family violence.

• A suitable standard of living.

These factors are set out in Section 75 of the Family Law Act in relation to marriages, and 90SF of the Family Law Act in relation to de facto relationships.

You are not entitled to maintenance if you marry another person unless a Court otherwise orders. If you start a new de facto relationship, then the financial relationship between you and your new de facto partner is taken into account when determining if you can support yourself adequately.

There may be time limits on when you can apply to the Court for maintenance.

• If you are not Divorced, then the Court can order the payment of spousal maintenance. In fact, the Court can order the payment of spousal maintenance before separation, although this is not very common.

• If you are already Divorced, then you can apply to the Court by right within 12 months of the Divorce Order taking effect. If more than 12 months has passed, then you must be granted permission from the Court to proceed with an application for maintenance.

• If the Court has made an order that your marriage was a Nullity, meaning that the marriage was void or that you were not validly married), then you must apply to the Court for maintenance within 12 months of the decree of nullity being made.

• You can apply to the Court by right for de facto maintenance within two years of the breakdown of the de facto relationship. If more than two years has passed, then you must be granted permission from the Court to proceed with an application for maintenance.