Urgent and interim spousal maintenance in the Family Court of WA

Separation often leaves one person with the mortgage, the children and no income of their own, while the other keeps earning. A property settlement can take months, and a contested one can take years. Spousal maintenance can fill that gap, and the court does not have to wait for the final hearing to order it.

This article is about getting support now: urgent and interim maintenance in the Family Court of Western Australia. The rules differ depending on whether you were married or in a de facto relationship.

Which law applies

(a) Married couples come under the Family Law Act 1975 (Cth). The right to maintenance is in s 72, the power to order it in s 74, the factors in s 75(2), and urgent maintenance in s 77.

(b) WA de facto couples come under Part 5A of the Family Court Act 1997 (WA). The matching sections are s 205ZC (the right), s 205ZCA (the powers), s 205ZD (the factors) and s 205ZE (urgent maintenance).

The two are close, but not identical. The federal factors were updated in June 2025 and now include the effect of family violence. The WA de facto factors in s 205ZD(3) were not updated and have no family violence paragraph, although violence can still be raised through the general factors.

The test

Under both Acts, one former partner must support the other only if both of these are true:

(a) the person asking cannot support themselves adequately, because they care for a child of the relationship under 18, because of their age or a physical or mental incapacity for suitable work, or for another adequate reason; and

(b) the other person is reasonably able to pay.

"Adequately" means a reasonable standard, not bare survival. The court disregards the applicant's entitlement to an income-tested pension, allowance or benefit, such as most Centrelink payments (s 75(3); s 205ZD(4)). Other pensions are taken into account. The duty to support falls on the former partner, not on the public purse.

Urgent maintenance

Urgent maintenance is for a true emergency. The court can order payments until the case is decided if:

(a) the applicant is in immediate need of financial help; and

(b) it is not practicable to decide straight away what final order, if any, should be made.

Both conditions must be met (s 77; s 205ZE). The court acts on limited evidence and does not try to decide the whole claim. The order is a stopgap, made quickly, so that the applicant can pay rent and buy food while the case proceeds.

Interim maintenance

Interim maintenance is the more common order. It is made under the general power and runs until the final hearing or a further order. The applicant still has to prove the test on the evidence, but the court does not need the detail it would at a final hearing, and it will not audit every household expense.

The court looks at three things:

(a) the applicant's reasonable needs, kept separate from the children's needs, which are met by child support;

(b) the applicant's own income and earning capacity, and any capital they hold; and

(c) the payer's income, less their own reasonable expenses, tax, debts and child support.

The court can order weekly or monthly payments, or require the payer to keep paying a particular bill such as the mortgage.

How it is done in the Family Court of WA

You start with an initiating application (Form 1), filed with a financial statement and an affidavit. If you need help before the final hearing, you also apply for interim orders. From 1 July 2026 the fee for the application is $455, plus $155 for the interim application, unless you are exempt.

Where the application seeks only maintenance and no property orders, it is listed before a magistrate for directions within 42 days after filing, if practicable (r 63(1)). At that first hearing the magistrate can make orders about disclosure (r 63). Each party brings the documents listed in r 64, including recent tax returns and, for anyone who runs a business, three years of its financial statements.

More often, maintenance is sought alongside a property claim, and the interim application is heard within that case.

Lump sums, and why the label matters

Maintenance is usually periodic, but it can be a lump sum, or part of a property transfer. If any part of a lump sum or transfer is meant as maintenance, the order must say so and state how much. Otherwise it is treated as not providing maintenance at all (s 77A; s 205ZF). The rule is strict and is often missed in drafting, so the wording of consent orders deserves care.

Deadlines, and when maintenance ends

For a married couple, no deadline runs while you are separated but not divorced. Once a divorce order takes effect, a maintenance claim must be filed within 12 months (s 44(3)). Late claims need leave, which can be given for hardship or where the applicant could not support themselves without a Centrelink payment (s 44(4)).

For a WA de facto couple, the deadline is two years after the relationship ended, and leave is available only for hardship (s 205ZB). There is no Centrelink ground.

A maintenance order ends on the death of either party. It also ends when the person receiving it marries, unless the court orders otherwise in special circumstances (s 82; s 205ZK). For a married recipient the court can also vary an order if they start a new de facto relationship. Either party can ask the court to vary an order when circumstances change.

Before you apply

Keep a record of your actual living costs for a few months, and gather evidence of the other party's income. Maintenance cases turn on numbers, and a well-prepared financial statement is often what persuades the other side to pay without a hearing. A lawyer can also use the threat of an interim application to negotiate a voluntary arrangement while the property settlement is worked out.

This article is general information about the law in Western Australia as at 27 October 2026. It is not legal advice about your situation.