Divorce or separation can be a challenging time, both emotionally and financially. One of the key legal considerations during this period is spousal maintenance—a financial support payment that one ex-partner may be required to pay to the other after separation.
If you’re going through a separation in Australia, understanding spousal maintenance is crucial to ensure financial stability for yourself or your former partner. In this guide, we’ll break down:
- What spousal maintenance is
- Who is eligible to claim it
- How it’s calculated
- The difference between spousal maintenance and child support
- How to apply for it
- When payments may cease
By the end of this article, you’ll have a clear understanding of how spousal maintenance works in Australia and whether it applies to your situation.
1. What is Spousal Maintenance?
According to Testart Family Lawyers spousal maintenance is financial support paid by one ex-partner to the other after separation or divorce. It is designed to assist a spouse who cannot adequately support themselves due to various factors, such as:
- Lower income or earning capacity
- Health issues or disability
- Caring for young children
- Age or lack of employment opportunities
Unlike child support (which is specifically for children’s expenses), spousal maintenance is solely for the financial wellbeing of the former partner.
Is Spousal Maintenance Automatic?
No. Unlike child support (which is often automatically calculated by the Child Support Agency), spousal maintenance is not automatically granted. The receiving spouse must apply for it, and a court will decide if payments are necessary.
2. Who Can Claim Spousal Maintenance in Australia?
Under the Family Law Act 1975, either spouse (or de facto partner in eligible states) can apply for spousal maintenance if they meet two key criteria:
A. Need for Support
The applicant must prove they cannot meet their own reasonable living expenses due to:
- Insufficient income (e.g., part-time work, unemployment)
- Limited earning capacity (e.g., due to age, illness, or caring responsibilities)
- Significant financial disadvantage caused by the relationship (e.g., giving up a career to raise children)
B. Other Party’s Ability to Pay
The paying spouse must have the financial capacity to provide support without compromising their own reasonable needs.
Example Scenario:
Sarah and John divorced after 15 years of marriage. Sarah stayed home to raise their children while John worked as a high-earning engineer. After separation, Sarah struggled to find full-time work due to her long career gap. She applied for spousal maintenance, and the court ordered John to pay her $800 per month for three years while she upskills and re-enters the workforce.
3. How is Spousal Maintenance Calculated?
Unlike child support (which follows a formula), spousal maintenance is decided on a case-by-case basis. Courts consider:
Factors Influencing the Amount & Duration:
Income & Assets – Both parties’ financial situations are assessed. Necessary Living Expenses – Housing, food, medical costs, etc. Age & Health – A disabled or elderly spouse may receive longer-term support. Childcare Responsibilities – If caring for young children limits work options. Future Earning Potential – Whether the applicant can become self-sufficient. Standard of Living During Marriage – Courts may aim to prevent drastic drops in living standards.
Types of Spousal Maintenance Payments:
- Periodic Payments (e.g., weekly or monthly amounts)
- Lump Sum Payment (one-time settlement)
- Property Transfer (instead of cash payments)
4. Spousal Maintenance vs. Child Support: What’s the Difference?
| Aspect | Spousal Maintenance | Child Support |
|---|---|---|
| Purpose | Supports ex-partner’s living costs | Supports children’s expenses |
| Who Receives? | Former spouse/partner | Primary caregiver of children |
| Automatic Calculation? | No – must be applied for | Yes (via Child Support Agency) |
| Duration | Temporary or long-term (case-dependent) | Until child turns 18 (or finishes education) |
Important Note: Child support takes priority over spousal maintenance. If the paying spouse has limited funds, child support obligations will be fulfilled first.
5. How to Apply for Spousal Maintenance
Step 1: Negotiate Privately (If Possible)
Before going to court, ex-partners can agree on spousal maintenance through:
- Informal agreements (though not legally binding)
- Binding Financial Agreements (BFAs) or Consent Orders (legally enforceable)
Step 2: Apply to Court (If No Agreement is Reached)
If negotiations fail, you can file an application with the Federal Circuit and Family Court of Australia (FCFCOA). You’ll need:
- Proof of financial need (bank statements, medical reports, etc.)
- Evidence of the other party’s ability to pay (tax returns, pay slips)
- Legal advice (recommended)
Step 3: Court Decision
A judge will assess both parties’ financial situations and decide:
- Whether maintenance should be paid
- How much and for how long
6. When Does Spousal Maintenance End?
Payments may stop if:
The recipient remarries or enters a new de facto relationship. The court-ordered period expires. The recipient becomes financially independent. The paying spouse can no longer afford payments (e.g., job loss).
7. Common Misconceptions About Spousal Maintenance
“It’s only for women.”
→ False. Either spouse can claim if they meet the criteria.
“It lasts forever.”
→ Usually temporary, unless exceptional circumstances (e.g., severe disability).
“The richer spouse always has to pay.”
→ Only if the other spouse genuinely cannot support themselves.
8. Key Takeaways
Spousal maintenance is financial support for an ex-partner who cannot self-sustain. It’s not automatic—you must apply through negotiation or court. Payments depend on need vs. ability to pay, not gender. It differs from child support, which is solely for children’s expenses. Always seek legal advice to understand your rights and obligations.
Final Thoughts
Spousal maintenance can be a lifeline for those struggling financially after separation. If you believe you’re entitled to support—or if your ex is requesting payments—consult a family lawyer in Melbourne like Testart Family Lawyers to explore your options.
Have you experienced spousal maintenance in Australia? Share your thoughts or questions in the comments!
