In the United States they call it alimony, the starting point of many a gripe or joke about divorce on American television. Here in Australia, it's known as spousal maintenance. Contrary to the popular TV view of alimony, spousal maintenance is not so simple or quite so imbalanced. So, what is spousal maintenance and are you eligible for it? Or are you required to pay it?
WHAT IS SPOUSAL MAINTENANCE?
Spousal maintenance is when one party to a relationship provides ongoing financial support to their former partner in circumstances where:
- One partner is unable to adequately meet their own reasonable needs; and
- The other partner has the capacity or is "reasonably able" to pay.
Under the Family Law Act, parties to a relationship have a duty to maintain their former spouse or partner if the above criteria are met. As with most things in family law, a judge determining a spousal maintenance application will have regard to what is "just and equitable", so each case will turn on your unique circumstances. This is also the case for how much spousal maintenance may be ordered. There is no formula for what is the 'right' amount to be paid.
Any application for spousal maintenance before the courts is time-limited: an application must be filed within 12 months of your divorce becoming final, or within 2 years of your de facto relationship breaking down. In addition, you and your partner need to determine whether you are able to reach an agreement between you before filing. If you are able to come to agreement, you'll save a great deal of time and stress, not to mention legal fees!
Maintenance is not restricted to one spouse or another. It is gender-neutral and applies to both marriages and de facto relationships. It can be ordered in the form of a lump-sum payment or be periodical, perhaps weekly, fortnightly or monthly.
AM I ENTITLED TO IT?
As mentioned above, maintenance applications turn on one partner's inability to meet their own needs and the other partner's ability to pay. This is clearly a simplified overview so it is important to understand some of the methods by which those standards are determined.
- The first and most obvious is your and your partner's respective incomes. Ordinarily, there would need to be a significant disparity between your incomes before a maintenance application would be entertained.
- Your current capacity to earn an income. It is relevant whether the marriage has affected your ability to earn, for example, if you stopped work to raise children. However, if you are not earning, or only earning a little but have the skills to earn more, a court is able to make a determination that you are not exercising your full earning capacity and deny you maintenance.
- Your age and health will be taken into account, particularly in terms of how they may affect your earning capacity in the future.
- What constitutes a suitable standard of living. This does not mean the standard of living enjoyed before the breakdown of the relationship, but what is reasonable in all the circumstances.
In the aftermath of a relationship breakdown, if you find yourself unable to adequately support yourself and your ex-partner is more financially secure, you may be entitled to spousal maintenance. You are not expected to sell assets to meet your costs in those circumstances.
It is important to note that maintenance is not child support. Orders can be made for both child support payments and spousal maintenance simultaneously, if the circumstances dictate.