Asset 9 transparent logo


Divorced Couples and the Question of Spousal Support

Divorce can be very messy and emotional, especially when children are involved. However, even in the best circumstances, divorce is still a major life event that can have significant financial implications for both parties. One critical issue that needs to be addressed during a divorce is the question of spousal support and spousal maintenance.

In Australia, there is no automatic entitlement to spousal support. The Family Law Act 1975 (Cth) sets out the general principles that the court will consider when deciding on spousal support, but there is no hard and fast rule about whether or how much spousal support should be paid. The court will consider several factors which you need to prove that you have a genuine need for financial aid.

Family law is complex, so it is always best to seek legal advice from a qualified family lawyer before making decisions about your case. They will be able to help you understand your rights and obligations and give you expert advice about the best way to move forward with your issue.

How Do You Get Around Spousal Support?

When seeking spousal support, the first thing to do is apply to the court. The court will then set a date for a hearing, at which both parties will have an opportunity to present their case.

Remember that spousal support and maintenance are two different things that are often confused. Spousal support acknowledges spouses’ typical duties to keep each other in a marriage or de facto relationship. Spousal maintenance, on the other hand, is the financial support one spouse gives the other during or after a divorce. 

When deciding about spousal support, the court will always consider the children’s best interests. If children are involved, the court will usually order that the spouse with primary care of the children receive spousal support.

Spousal support can be ordered on a temporary or permanent basis and paid in a lump sum or periodic payments.

How Does the Family Court Make Assessments?

The family law system in Australia is designed to deal with the division of property and spousal support following the breakdown of a marriage or de facto relationship. The court can order property settlement, spousal maintenance and child support.

The family Law Act 1975 sets the following criteria that the court must consider when deciding on spousal support:

  • The financial contribution that each party has made to the marriage or de facto relationship;
  • The future needs of each party, including their age, health, employment prospects and caring responsibilities for any children;
  • The standard of living that the parties enjoyed during the marriage;
  • The financial needs of each party;
  • The ability of each party to meet their own needs;
  • The impact of the divorce on each party’s earning capacity.

The court will also consider any other relevant factors, such as whether there was any domestic violence during the marriage.

How Long Does Spousal Support Last in Australia?

There is no set time limit on how long spousal support can be paid for in Australia. The length of time that spousal support will be paid will depend on several factors, such as the parties’ needs and the payer’s ability to continue making payments.

However, under the Family Law Act 1975, one spouse is responsible for supporting the other after separation if the other spouse cannot do so. It is appropriate to make such payments. 

Moreover, in a divorce situation, both spouses are duty-bound to support and preserve each other as much as possible. This duty may last even after separation and divorce. The amount of assistance one spouse must give is determined by the other’s financial capacity.

Who Is Entitled to Spousal Maintenance in Australia?

For a spouse to be eligible for spousal maintenance in Australia, they must meet certain criteria. The Family Law Act 1975 sets out the following eligibility criteria:

  • The spouse is unable to support themselves because of an illness or disability;
  • The spouse is caring for a child who is under 18 years old;
  • The spouse is caring for a child who is over 18 years old and has a physical or mental disability;
  • The marriage has lasted for at least 3 years;
  • The divorce will cause financial hardship to the spouse;
  • There is a difference in earning capacity between the spouses.

Spousal Maintenance vs Property Settlement

Residential property settlements are another term for financial settlements. When dealing with property settlements, several people prefer to negotiate spousal maintenance. When it comes to family law on property settlements, you’ll need an expert.

It is important to note that spousal maintenance is not automatic in Australia. The court will only make an order for spousal maintenance if it is satisfied that it is necessary and just to do so.

So how is spouse maintenance calculated? There is no set formula for calculating spousal maintenance in Australia. As long as the court is satisfied that the payment is necessary and just, it has the discretion to make an order for spousal maintenance.

How Madison Marcus Can Help You

If you are considering separating from your spouse or partner, seeking legal advice about your rights and obligations is essential. And if you’re seeking spouse maintenance or responding to a claim, a family lawyer can help you to understand the law and negotiate an agreement with your ex-partner.

At Madison Marcus, our family Lawyers are experienced in family law, including divorce, property settlements, spousal maintenance and child support. Our team of specialist family lawyers can provide you with the advice and assistance you need to protect your rights and interests.For all enquiries or a free 15-minute consultation,contact us here.


Follow Us

Subscribe to our newsletter