Key Takeaways
- Spousal maintenance is financial support provided by one partner to the other after separation or divorce.
- Eligibility depends on the recipient’s inability to support themselves and the payer’s capacity to provide support.
- Factors influencing maintenance include income, earning capacity, age, health, and responsibilities toward children.
- Applications must be made within specific timeframes: 12 months post-divorce or 2 years after de facto separation.
What Is Spousal Maintenance?
Spousal maintenance is a legal obligation for one spouse to provide financial support to the other, generally after separation or divorce. This support ensures that the receiving spouse can maintain a reasonable standard of living, especially if they are unable to support themselves financially. It’s distinct from child support, which is specifically for the care of children.
Who Is Eligible?
In New South Wales, eligibility for spousal maintenance is determined by the Family Law Act 1975. An individual may be entitled to maintenance if they cannot adequately support themselves due to:
- Caring for a child under 18.
- Age or physical/mental incapacity.
- Other adequate reasons, such as lack of employment opportunities.
The court assesses both the need for support and the other party’s ability to pay.
Factors Considered by the Court
When determining spousal maintenance, courts evaluate:
- Income and earning capacity of both parties.
- Financial needs and responsibilities.
- Standard of living during the relationship.
- Age and health of each party.
- Contributions to the marriage, both financial and non-financial.
- Responsibilities toward any children.
These factors help ensure a fair assessment of each party’s circumstances.
Duration and Modification
Spousal maintenance can be:
- Short-term: To support the recipient until they become self-sufficient.
- Long-term: In cases where self-sufficiency isn’t feasible due to age, health, or other factors.
Maintenance orders can be modified if there’s a significant change in circumstances, such as:
- Change in income or employment status.
- Remarriage or new de facto relationship of the recipient.
- Health issues affecting earning capacity.
It’s essential to apply for modifications through the court to ensure legal enforceability.
Application Process
To apply for spousal maintenance in NSW:
- Seek Legal Advice: Consult a family lawyer to understand your rights and obligations.
- Prepare Documentation: Gather evidence of financial needs, income, expenses, and any relevant responsibilities.
- File an Application: Submit your application to the Federal Circuit and Family Court of Australia.
- Attend Court Proceedings: Be prepared to present your case, and consider mediation as an alternative to litigation.
Applications must be made within 12 months of a divorce or 2 years after the end of a de facto relationship.
Conclusion
Understanding spousal maintenance is crucial for individuals navigating separation or divorce in NSW. Assessing eligibility, understanding the factors involved, and following the correct application process can help ensure fair financial support arrangements. Always seek professional legal advice to guide you through this complex area of family law. The Family Law team at Berryman Partners are here to help. Book a confidential consultation today.
This blog was written by Associate,
Jessica Benson
Jessica practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates and Will disputes
