The Family Law Act provides that a legal or de-facto spouse may claim spousal maintenance after separation. If there is a substantial difference in the incomes of the spouses at the date of separation, spousal maintenance can be payable. If a spouse is entitled to spousal maintenance, the spouse with the higher income must provide him or her with financial support. This may be paid periodically or as a lump sum, depending on the circumstances. Questions we are frequently asked, include:-
Am I entitled to spousal maintenance?
A spouse has the right to maintenance to the extent that the other spouse is able to maintain them, if they are unable to support themselves adequately because of:
a) Having the care of a child of the marriage;
b) Age or physical or mental incapacity; or
c) For any other adequate reason.
How do I apply?
Best case scenario is that you and your spouse are able to come to an agreement. If agreement can’t be reached or if circumstances prevent discussions about this prior to separation, an Application can be filed with the Federal Circuit Court seeking orders for spousal maintenance. In support of your Application to the Court, you will need to detail what your income and expenses are in a Financial Statement. Your spouse will then need to detail their position in a Response to the Court. If there is an urgency to your matter, immediate payment may be ordered pending any final resolution of your matter (section 77 of Family Law Act, 1975).
How does a court work out how much I will receive?
The court will look at the financial needs of you and the capacity of your spouse as their ability to pay. There is no set formula and the court will consider the reasonable day-to-day expenses of the party claiming need.
What things will the court consider?
In reviewing your claim for spousal maintenance, the court will assess the following:
– Your age and health and that of your spouse;
– Your income, property resources and capacity for employment;
– Who has care of a child;
– Any eligibility for social assistance;
– What is reasonable living circumstances;
– Length of relationship;
– If there are any financial agreements between the parties;
– Any other circumstances the court considers should be taken into account (Section 76, Family Law Act).
When can I apply?
For a married spouse you have 12 months from the date of your Divorce, if you were in a de-facto relationship, you have 2 years from the date of final separation to file an application. There is some scope outside of these time restraints in special circumstances.
So where does this leave you?
Be aware that there are options available to you! We’re fortunate that we live in Australia and in circumstances where appropriate the Family Law Act (1975) makes provision for separating spouses to have this financial protection.
Should you wish to know more about this, and what your entitlements are – P | (02)5733 5885 E | office@egfamilylaw.com.au.
Emalene Gemmell Family Law
Family Lawyers
