Updated: 1 day ago
Financial uncertainty is one of the most common concerns following separation or divorce. If one party can't meet reasonable living expenses and the other can help, spousal maintenance may provide short-term or ongoing financial support.
Let's explore how spousal maintenance works in Australia, when it may apply, how it is assessed, and what steps you can take if you are considering an application.
In This Article:
What Is Spousal Maintenance?
Spousal maintenance is financial support one former spouse or de facto partner pays the other after separation. It is designed to assist a party who cannot adequately support themselves, where the other party has the financial capacity to contribute.
Spousal maintenance is separate from child support and is governed by the Family Law Act 1975. It applies to both married couples and eligible de facto relationships.
When Can Spousal Maintenance Be Ordered?
The Federal Circuit and Family Court of Australia may order spousal maintenance if two key conditions are met:
one party is unable to adequately support themselves; and
the other party has the capacity to pay.
A person may be unable to support themselves for a range of practical and financial reasons, such as:
caring for young or dependent children
limited earning capacity or time out of the workforce
age or health issues
a significant disparity in income or financial resources
Spousal maintenance aims to ensure both parties can maintain a reasonable standard of living after separation, particularly where the relationship has affected one party’s financial independence.
An application for spousal maintenance must ordinarily be commenced within 12 months of a divorce order taking effect or within two years of the end of a de facto relationship, unless leave of the Court is granted.
Factors The Court Considers
When assessing whether spousal maintenance should be paid, the Court carefully considers each party's individual circumstances.
This includes a range of personal, financial and practical factors, such as:
each party’s age, health and earning capacity
income, property and financial resources
reasonable living expenses
care of any dependent children
the length of the relationship and the standard of living during it
each party’s financial obligations
How Is Spousal Maintenance Calculated?
There is no fixed formula for calculating spousal maintenance in Australia, and each matter is assessed on its own circumstances.
The Court will examine:
income and financial resources of both parties
existing debts and obligations
each party’s ability to earn income
the paying party’s capacity to meet their own needs while providing support
Because every financial situation is different, there is no average amount. The outcome must be just and equitable based on the evidence. For example, a former partner who has been out of the workforce caring for children may receive periodic payments for a defined period to allow time to retrain or re-enter employment.
How Long Does Spousal Maintenance Last?
Spousal maintenance can be:
short-term, to assist during a transition period
ongoing, where long-term financial support is required
lump sum, rather than any ongoing or periodic payment
The duration will depend on the factors the Court has considered (as outlined above), as well as any changes to personal circumstances. This may include changes in financial circumstances, health, or whether the recipient enters a new de facto relationship or remarries.
Orders can be varied or ended if circumstances change, including a reduction in the paying party’s capacity to pay.
How To Apply For Spousal Maintenance
Applying for spousal maintenance involves several important steps, whether you resolve the matter by agreement or need court involvement.
Get Legal Advice
Before taking any formal action, an experienced family lawyer can assess your eligibility or obligations, explain likely outcomes, and help explore settlement options. Early advice can also assist with negotiations and may avoid the need for court proceedings altogether.
Prepare Financial Disclosure
Both parties must provide complete and accurate financial disclosure. This usually includes evidence of income, expenses, assets, liabilities and superannuation. Full disclosure allows negotiations or court proceedings to be fair and transparent.
Attempt Negotiation Or Dispute Resolution
Where possible, parties are encouraged to resolve spousal maintenance through negotiation or mediation. If the parties reach an agreement, they can formalise it through consent orders or binding financial agreements. If no agreement is reached, parties generally must give proper notice of their intention to commence court proceedings.
Apply To The Court
If negotiations are unsuccessful, you may apply to the Federal Circuit and Family Court of Australia. This involves filing court documents, including an affidavit setting out financial needs, reasonable living expenses and the other party’s capacity to pay.
Court Assessment And Orders
The Court will consider both parties' financial circumstances, including income, health, age, care of children, and future earning capacity. If appropriate, the Court may order periodic payments, a lump sum, or other forms of financial support.
Enforcement
If a party fails to comply with a spousal maintenance order, the other party may need to take enforcement action. The Court has powers to ensure compliance with orders and payment as required. This is referred to as a Maintenance Order.
When Should You Seek Legal Advice?
Understanding whether you may be entitled to spousal maintenance, or required to pay it, requires a careful assessment of both parties’ financial positions.
Legal advice can help you understand your rights and obligations, avoid missed deadlines, negotiate fair, practical outcomes, and plan your financial future with confidence.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current, and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication are those of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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