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.
- 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.
CASE Example - Ms Maud & Mr Hopper
Mr Hopper and Ms Maud married in 2005 and separated in 2018. During the course of the marriage, Mr Hopper was the primary breadwinner and currently earns $105,000 per annum working as a school teacher. Ms Maud is a qualified accountant, however hasn’t worked for the past 5 years due to being the primary carer of the couple’s two young children, Zahara and Evan. Ms Maud does not currently have an income.
Upon separation, Ms Maud continues to be the primary carer of both of the children, with Mr Hopper spending each Friday night and Saturday night with them.
Ms Maud applies for a child support assessment through the department of human services and spousal maintenance through the Family Court of WA.
Based on his income and nights of care per week, Mr Hopper is assessed to pay $112 per fortnight to Ms Maud in child support.
Ms Maud is also found by the Family Court as being unable to support herself due to being the primary carer for both children. Mr Hopper is ordered to pay the amount of $400 to Ms Maud per week in spousal maintenance as well as her health insurance.
Hopper v Maud 
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 
HOW LONG DO I HAVE TO PAY SPOUSAL MAINTENANCE FOR?
This also depends on the individual circumstances of your case. There is no minimum or maximum period set by the law.
The payment of spousal maintenance can be ordered for a prolonged period of time or a shorter period of time with an end date.
This can be due to a change in circumstances, such as the partner who previously needed maintenance having a change in circumstances- such as obtaining employment or re- partnering.
Not Sure What To Do Next?Free Discussion
The family law team at MKI Legal can assist you with any questions about your family law matter, separation, splitting your assets or your children. We can help you make the right decision on what to do next.
Time limits to lodge an application
If you were married, the deadline to lodge a spousal maintenance application is 12 months after your divorce.
If you were in a de facto relationship, an application needs to be filed within 2 years from the date of separation.
If this time limit has passed, it is still possible to make an application for spousal maintenance, but you will need to prove that you are experiencing hardship as a result of not having access to maintenance form your partner.