How is Spousal Maintenance Calculated?

When a marriage or de facto relationship ends, one spouse may be required to provide financial support to the other spouse, and this support is known as spousal maintenance.

Spousal maintenance is most commonly ordered by the court after an application for spousal maintenance has been made by an eligible candidate. Spousal maintenance isn’t an automatic guarantee after the end of a relationship, a number of factors will determine whether someone is eligible for this kind of financial support. And the amount of spousal maintenance a person will be paid or will be required to pay will differ from former couple to former couple as it is dependent on a wide variety of factors too.

In this article, we will discuss a number of topics surrounding spousal maintenance, including who is entitled to spousal maintenance and how the amount of spousal maintenance that someone needs to pay is determined.

Who is eligible for spousal maintenance payments?

The family law system in Australia provides the criteria that needs to be considered when working out whether spousal maintenance is required to be paid, and how much the payment will be.

To be able to apply for spousal maintenance you must fit into one of the 3 scenarios below:

1. You are separated from your spouse but still legally married;
2. You have divorced from your former spouse and made an application for spousal maintenance within 12 months of the divorce; or
3. You were in a de facto relationship and meet some additional criteria (explained further below).

For de facto couples, spousal maintenance is referred to as de facto partner maintenance. A person formerly in a de facto relationship may be entitled to this kind of payment if they lived together as a couple for at least two years or if they lived together for less than two years but had a child together. If a person from a de facto relationship is applying for spousal maintenance, they must do so within two years of their separation. Knowing the date of separation is crucial in these circumstances.

What is considered before spousal maintenance is awarded?

An application for spousal maintenance requires a lot of information about the applicant, including their current income and financial circumstances, as well as current living costs. The application will usually require the applicant to provide information regarding how much they believe they need to be able to meet their reasonable needs.

The age of the applicant, as well as their health, assets and financial situation will all be factored into the decision as to whether they will be eligible for spousal maintenance payments. The financial situation of the former spouse of the applicant (known as the respondent in these circumstances) will also be considered. If there is a large difference in these financial situations, the reasons for this will be considered as well.

How much spousal maintenance will a person get?

Unlike some types of governmental financial support payments, there is no set payment amount for spousal maintenance.

Every situation is unique, and when determining the amount a person will be required to pay for their spousal maintenance payment, a court will take many different factors into account.

The present-day requirements of both parties, as well as their future needs, will be taken into consideration to determine not just the dollar amount of the payment but also how regularly the payment will be required and for how long. Spousal maintenance payments may only be required until a certain circumstance has changed – such as if the either party is to remarry or enter into a new de facto relationship, whether the employment circumstances change significantly, if either party dies, or there may just be a specific date that the payments will end.

Some of the factors that will impact the determination of how much the spousal maintenance payment will be include:

–        Age

–        Heath

–        Care for dependents, children, parents, relatives

–        Child support payments

–        New relationships

–        Property settlement agreements

–        Financial agreements

–        Earning potential and capabilities

The above factors will be assessed for both parties to ensure that the payment amount is as fair to both parties as possible.

Does the reason the relationship ended matter in spousal maintenance matters?

The divorce system in Australia is no-fault, which means that the reason for a divorce or separation isn’t considered in legal matters, including for spousal maintenance matters.

How does a person go about getting spousal maintenance?

A spousal maintenance payment agreement can be a simple agreement between the former couple and can be part of a prenuptial or binding financial agreement. A couple could make a private agreement and make it legally binding in a financial agreement. This requires the assistance of a family lawyer.

Otherwise, spousal maintenance can be applied for through the Federal Circuit and Family Court of Australia. It’s important that the application is accurate, reasonable and filed within the various time limits – within 12 months of a divorce having been finalised or within 2 years of the date of separation for a de facto relationship.

Should I get a lawyer before I apply for spousal maintenance?

A lawyer isn’t required if you are planning on applying to the Federal Circuit and Family Court of Australia for spousal maintenance, however, if you’re planning on applying for spousal maintenance, seeking legal advice from an experienced lawyer will make the process a lot easier.

In Australia, the Sydney family lawyers at Unified Lawyers could assist you in ensuring that you are eligible for this kind of payment and that you understand the requirements of the application. A family lawyer can also assist you and your former spouse with making a private agreement legally binding in a binding financial agreement and provide advice on a number of different topics that you may be having difficulty with during your divorce or separation.