Spousal Maintenance can take both or either of two forms. Firstly, spousal maintenance can be in the form of one lump sum, such as one person taking a higher percentage of the share of the assets, that higher percentage representing a set amount of support, or secondly, spousal maintenance can be agreed or ordered as ongoing regular payments.
In order for Spousal Maintenance to be applicable, one of you must be in need of ongoing support, as you are unable to support yourself ‘adequately’ and the other person, needs to be able to afford to pay Spousal Maintenance.
You must not be able to support yourself ‘adequately’, either because:
- You have care and control of a child of the marriage under the age of 18; or
- You are unable to gain appropriate employment due to age or mental capacity; or
- for any other adequate reason.
S.75 of the Family Law Act provides that a wide range of factors are to be taken into account when deciding whether maintenance should be paid, including standard of living prior to the separation; the contributions (financial and non-financial) made over the years; the duration of the marriage, and the loss of workplace skills due to the duration of the marriage; your age and state of health; any benefits that you may be entitled to; and the justice of the case. The court would consider whether the standard of living of one party would be greatly reduced following the separation due to an inability to command a similar income to that of the other party.
If maintenance is likely to be requested/required by either of you, it is advisable to reach a private arrangement in relation to the payment of maintenance, in order to avoid the time and cost involved with going to Court. If you cannot reach an agreement on maintenance, it is possible to make an application to the Court for maintenance.
If you are in immediate need of financial assistance, we can also make an application for Urgent Spousal Maintenance. The Court will consider whatever evidence is available to it at the time and takes a more pragmatic approach. We can also make an application for an interim order for Spousal Maintenance, which would remain in place until a further order was made by the Court.
When making an application for Interim or Final Maintenance Orders, each of you will be required to provide a copy of taxation returns for the 3 most recent financial years; bank records for the previous 3 years; payslips for the past 12 months or profit and loss if self-employed; and any other document relevant to determining the income, needs and financial resources; so as there is full and frank disclosure of the financial position of you both.
Any application for division of property or spousal maintenance should be made within 1 year from the date of the divorce, as if you do not apply within this time period, you will have to seek leave from the Court in order to make the application. Applications for Leave, will only be granted if you can establish that hardship would be caused to a party or a child if leave was not granted, and as such we would advise that any application is made within the initial 12-month period after divorce or you divide your assets before applying for a divorce.
Court orders relating to Spousal Maintenance are enforced via the Department of Human Services (Child Support) (formerly the Child Support Agency). Any award of Spousal Maintenance should be registered with the Agency.
Please advise us if you wish to formulate an informal agreement for maintenance, or in the alternative if you have attempted to formulate an agreement, but your spouse is refusing.