When couples are separating or divorcing it is not unusual for one spouse to have less independent income to rely upon than the other. The issue can be even more concerning when one parent is a full-time caretaker of the couple’s children. Whether a couple is married and separated and divorcing or a de facto couple that is no longer staying together, it is very likely that one partner will need some level of spousal maintenance.
What Is Spousal Maintenance?
Spousal maintenance is governed by the Family Law Act 1975. This Act provides for the financial maintenance of one spouse by the other. Traditionally, it is men who provide spousal support to their female spouse, but not necessarily. The criteria are dependent upon which spouse, the husband or the wife, will need assistance in maintaining a reasonable standard of living.
When Can Spousal Support Be Ordered?
Spousal support can be ordered upon;
- Separation from your spouse or de facto partner
- After the divorce or de facto partnership is formally dissolved
- For divorcing couples, you must make the request for spousal support within 12 months of divorcing
- For de facto couples you must make the request within 2 years of the ending of the relationship
- In rare instances, during the life of the marriage or de facto relationship
What Factors Will the Court Take into Consideration When Determining Spousal Maintenance?
The court will take several factors into consideration when determining the amount of spousal maintenance one party will pay to the other. Therefore, if the parties cannot come to a determination by mutual agreement, the following factors will be taken into consideration;
- The shared assets of the marriage and the de facto relationship
- The ability of each party to garner a sufficient income to live to a reasonable standard
- The effect the marriage or de facto relationship has had on the spouse or partners ability to make a living during the course of the relationship
- The most common factors include; parents who have not worked due to providing full time childcare for the couple’s children
- Geographical location or moves that have been made that benefited one spouse but harmed the other parties’ ability to obtain work in their area of education and expertise
- One partner needs to care for an ill or aging family member that limited or eliminated their ability to work on a full-time basis.
- The ability for both parties to maintain a reasonably similar standard of living
- The expenses that will be incurred by the party now that they are living separate from the spouse with the greater income potential
- The age and health of the party in need
- Which spouse the children will be living with and what expenses they will incur in caring for the needs of the couple’s children
How Do You Apply for Spousal Maintenance?
Spousal maintenance can be applied for in a couple of different ways.
1) A spouse can apply through the Family Court of Australia,
2) Application can also be made via the Federal Circuit Court of Australia.
3) A spouse can make an application to meet for negotiation or mediation with their partner
For each of these options it is highly recommended that the spouse making the application seek the advice and counsel of a solicitor who specializes in the area of Family Law and spousal maintenance.
What Information Will I Have to Supply to the Court or my Solicitor?
Regardless of the manner in which you approach a request for spousal maintenance, you will need to provide all or most of the following documents regarding your financial abilities.
- Assets you hold separately in your own name
- Cost of living information including rent/mortgage, food, clothing and basic living costs
- The costs associated with any children who will be residing with you
- Your current income or lack thereof
- Bank statements that are held jointly
- Investments
- Superannuation account information
- Tax information
It is very important that when you are supplying financial information that you be fully and completely transparent.
While no one expects to need ongoing financial support after a divorce or the breakdown of a de facto relationship, it is a very rare situation where some balancing of the financial scales is not necessary. As such, if you find that you are in the midst of the breakdown of either your marriage or your de facto relationship, it is important to seek the advice of a solicitor who can assist you in understanding if you are entitled to spousal maintenance and to what extent.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.