WHAT IS SPOUSAL MAINTENANCE?

Spousal maintenance is financial support paid by one partner to another when their marriage or de facto relationship has broken down.

AM I ENTITLED TO SPOUSAL MAINTENANCE?

For an application for spousal maintenance to be successful, the Family Court has two criteria that it assesses.

The first test is that the applying must not be able to support themselves due to one of the following reasons:

• Caring for a child of the relationship under 18 years of age.
• Age
• Injury or medical condition that prevents them from finding appropriate gainful employment.
• By reason of age or physical or mental capacity for appropriate gainful employment
• Any other adequate reason.

The second test is the person being asked to pay has the financial capacity to contribute to the reasonable needs of the person unable to support themselves.

IS SPOUSAL MAINTENANCE THE SAME AS CHILD SUPPORT?

No. Child support is separate. Child support is based on the number of nights per year that each parent has with the child. The purpose of child support is to provide financial support for the children.

HOW IS SPOUSAL MAINTENANCE PAID?

Spousal maintenance often takes the form of periodic payments from one partner to the other.

This can either be cash payments, or payment of a particular expense on behalf of the partner, such as paying their rent, mortgage installments, private health care costs or other day to day expenses.

Another common form of spousal maintenance is through a lump sum payment at property settlement.

HOW MUCH SPOUSAL MAINTENANCE DO I HAVE TO PAY?

Once it has been shown that your partner is entitled to spousal maintenance and that you have an ability to pay, the amount of spousal maintenance that you have to pay really depends on your individual circumstances. Our experienced family and divorce lawyers can help you to understand what your obligations might be.

The things that are looked at are:

• A person’s weekly income vs their weekly expenses.
• Whether their expenses are reasonable.
• The shortfall in income to cover expenses, if any.
• The reason behind the shortfall.

HOW DOES THE COURT DECIDE WHAT IS REASONABLE?

It is a common misconception that each person in the relationship needs to be maintained to the standard prior to separation. This is not the case, but the way that each of you lived before separation will be taken into consideration to understand what is reasonable.

There is no formula that the court uses to calculate what is reasonable, and it is recommended that you get legal advice before making your application. Each case is assessed on its own merits.

CASE STUDY: Mr Hardison & Mr Peters

Mr Hardison and Mr Peters have been married for 2 years. Mr Hardison has a significantly higher earning capacity than Mr Peters and Mr Peters has been off work for four years due to psychological issues.

Upon separation, Mr Peters applied for a spousal maintenance order of $2,500 per week.

The judge in the matter looked through Mr Peter’s expenses and found that several things that Mr Peters had claimed were not reasonable. For example, Mr Peters claimed that he required $350 per week for skin care products. The trial judge commented that this was not a reasonable expense. Mr Peters also claimed as a necessary commitment $550 per week for holidays. The judge also found this figure excessive.

Hardison v Peters [2019]