Spousal Maintenance Lawyers Perth

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 person applying must not be able to support themselves due to one of the following reasons: 

  1. The have the care and control of a child of the marriage who has not attained the age of 18 years 
  2. By reason of age or physical or mental capacity for appropriate gainful employment 
  3. Any other adequate reason and 
  4. The other party has the financial capacity to contribute to the reasonable needs of the party 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 STUDY:

Hopper v Maud [2019]  

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. 

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 

  1. A party’s weekly income vs their weekly expenses 
  2. Whether their expenses are reasonable
  3. The shortfall in income to cover expenses, if any 
  4. The reason behind the shortfall 

How does the court decide what is reasonable?

It is a common misconception that parties to a marriage need to be maintained to the standard prior to separation. This is not the case, but the way that the parties 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 is it recommended that you get legal advice before making your application. 

CASE STUDY:

Hardison v Peters [2019]

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 has 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.   

How long do I have to pay spousal maintenance for?

This also depends on the individual circumstances of your case. 

The payment of spousal maintenance can be ordered for a prolonged period of time or a specific period of time with an end date. 

This can be due to a change in circumstances, such as the partner who previously needing maintenance having a change in circumstances- such as obtaining employment or re- partnering. 

I am divorced, can my ex-wife or ex-husband still make a claim for spousal maintenance?

It depends on when you got divorced. From the date of your divorce going through, the court accepts applications for spousal maintenance for up to 12 months from this date. 

If this 12 month cut off 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. 

How about following a de facto split?

An application needs to be filed within 2 years from the date of separation. Once the two year period expires, you will be required to prove hardship before being allowed to make an application for spousal maintenance.