Spousal maintenance is financial support paid by one spouse to the other. It is entirely different and separate to child support payments.
A successful application for spousal maintenance will require that the applicant cannot (for valid reasons) adequately support themselves and that the other spouse has the financial capacity to support the applicant.
Spousal maintenance is not an automatic right upon separation, nor is there any strict rule that the pre-separation standard of living must be maintained. You may like to note that the Australian system is very different to that which you may have seen on US TV shows. In determining whether the applicant can adequately support him or herself, the court will consider whether the applicant:
- had the care and control of children of the marriage;
- is unable to obtain appropriate employment due to his or her age or physical or mental incapacity; or
- has any other need which would justify an award of spousal maintenance (with regard to various factors in section 75(2) or 90SF(3) of the Family Law Act 1975).
You should note that even if the court determines the applicant is unable to adequately support him or herself, the other spouse is only liable to pay spousal maintenance in so far as they are reasonably able to do so. In other words, the other spouse’s capacity to pay (if any) is assessed by determining his or her surplus income after payment of reasonable living expenses.
Where possible, both spouses should enjoy a standard of living post-separation that they previously enjoyed, if it is reasonable to do so. However, that is not always possible as typically the higher costs of running two households means that they do not have the financial resources to maintain their pre-separation lifestyle.
Further, the court expects that an applicant of working age will ultimately return to the workforce, particularly as any children get older and need less physical care, unless there are other reasons why he or she can’t work, such as health issues. Spousal maintenance payments therefore are generally only ordered for a short period, usually of no more than three or four years, to allow time for the applicant to re-train and re-enter the labour market. However, for an applicant approaching retirement (and the ability to access superannuation) the length of the award of spousal maintenance may be longer and, in some very rare cases, spousal maintenance has been ordered for an indefinite period.