what is spousal maintenance

Spousal maintenance, or de facto maintenance, is a form of financial support paid by one party to a marriage or relationship to the other after separation, where the party being paid is unable to support themselves.

If one party has a need, then the other party has a duty to maintain that party and the level of that support will be subject to what the paying party can afford to pay.

Parties to a marriage have the right to make an application for spousal maintenance under section 72 of the Family Law Act 1975.

Parties to a de facto relationship are also eligible to be paid de facto maintenance payments under section 90SE of the Family Law Act 1975.

Spousal/de facto maintenance may either be made as a lump sum payment or more commonly, a periodical payment. A lump sum payment may be ordered in a situation where the party liable to pay spousal/de facto maintenance does not have the income to make ongoing payments, but may have substantial savings or property

Below are some frequently asked questions about spousal/de facto maintenance: 

What does the Court take into consideration when determining whether spousal maintenance will be paid?

The payment of spousal/de facto maintenance is not automatic on separation. There are several factors that are taken into account when determining whether spousal/de facto maintenance is payable and the amount of the payment.

These factors include:

  • The income, property and financial resources of both parties;
  • The expenses of both parties;
  • Each parties ability to work;
  • What is  suitable standard of living; and
  • With whom the children live

Will my spousal/de facto maintenance payments be affected if I enter a new relationship?

If you enter a new de facto relationship, when considering whether you will still be eligible for spousal/de facto maintenance payments from your previous spouse/partner, the court takes into account the financial relationship between you and your new partner to decide whether you are now able to adequately support yourself.

If you marry someone else, you are no longer entitled to spousal/de facto maintenance payments unless the court determines the payments are still required to support yourself.

How long do I have to file an Application for spousal/de facto maintenance payments?

A party to a marriage has 12 months from the date of divorce to apply for spousal maintenance. A party to a de facto relationship has two (2) years from the date of separation to apply for de facto maintenance.

Do I need to go to Court to get spousal/de facto maintenance from my ex-spouse/partner? 

You do not need to go to court to get spousal/de facto maintenance. If the parties can agree between themselves as to the amount and frequency they can enter consent orders or a binding financial agreement to document the agreement.

If you have any other questions, please contact us now and speak to one of our dedicated family law professionals who can work with you to understand your needs and circumstances, and devise a clear plan of action.

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The articles on this website comprise legal general information and not legal advice. The general information presented here must not be relied upon without legal advice being sought. In the event that you wish to obtain legal advice on the contents of this general information you may do so by contacting our office or your existing solicitor.