Am I Entitled to Spousal Maintenance from my Ex?

It is often the dynamic in a marriage or de facto relationship that one party takes on the role of the homemaker/parent, whilst their spouse takes on the role of breadwinner by working to earn an income to support the family financially. So, what happens to this dynamic following the breakdown of the marriage or de facto relationship? Is the “breadwinner” required to continue financially supporting their ex so that they can maintain their lifestyle?

In Family Law proceedings, financial support following the breakdown of a marriage or de facto relationship is called “spousal maintenance” and is independent to child support.  

Parties do not have an automatic right to spousal maintenance, meaning that if a marriage or de facto relationship has broken down and there is no binding financial agreement or Court orders in place that provide for spousal maintenance, neither party is bound to pay it at that point.  

If a party wants to receive spousal maintenance and an agreement cannot be reached with the other party, they will then need to make an application to The Federal Circuit and Family Court of Australia (“the Court”) seeking an order for spousal maintenance.

When dealing with such an application and determining whether the responding party is required to pay their spouse, the Court will assess:

a. Whether the applying party has need and is in fact unable to financially support themselves,

b. Whether the responding party has the capacity to pay.

In assessing the need of the applying party, the Court will not only consider their income, but also their earning capacity.  The Court may find that a party is not earning to their full capacity and reject their application for spousal maintenance on that basis, for example if they work reduced hours and have the capacity to increase their hours and therefore earn a greater income.

If the Court is satisfied that the applicant does have a need for spousal maintenance, they will then consider whether the responding party can in fact pay them, based on an assessment of their own income and expenses. If the respondent has provided financial support to the applicant prior to separation, and their income and expenses have not otherwise changed, it may be difficult to assert that they no longer have the capacity to pay.

The Court will also consider (amongst other factors contained in s 75(2) of the Family Law Act):

1. The effect of any family violence,

2. The age and state of health of the parties,

3. Whether the parties have care of a child under the age of 18.

Orders for spousal maintenance on a final basis are generally for a fixed period and are not indefinite, as the Family Law Act favours a clean break between parties who are separating.  Any application for spousal maintenance will need to be made within 12 months of a divorce order, and in de facto relationships, within 2 years of the final separation date.

If you are separating from your spouse and would like to better understand your entitlements to pay or receive spousal maintenance, contact our experienced Family Law team at Solari and Stock Lawyers on 02 8525 2700, or click here to request an appointment.

Article by Mia Doncevski
Image created in Canva