Spousal Maintenance

If you're seeking advice from a family lawyer, it's likely that you are going through a challenging and stressful life event. If children are involved, its imperative that the matter is handled with extreme care and professionalism.

Spousal Maintenance

Spousal maintenance is an available remedy to persons in Australia seeking financial support from their former partner/spouse after the breakdown of their marriage or de facto relationship. In certain circumstances, spousal maintenance can be an essential consideration when finalising a property settlement.

The entitlement to spousal maintenance is not an automatic right. There is a two-step threshold test that must be met when considering whether a person is eligible to receive spousal maintenance:

  • Whether the person claiming spousal maintenance is unable to adequately support themselves because

(i) they have care and control of a child of the marriage who is under the age of 18; and

(ii) whether they are unable to seek gainful employment due to age, state of health or mental incapacity; and

If the above is established, then ascertaining its limit needs to be determined, which is governed by the extent to which the payer is “reasonably able to do so.”

This two-pronged test is sometimes referred to as the “the Need vs the Ability to Pay” test. If the Court is satisfied that the threshold has been met, namely that one party is unable to support themselves and the other has the capacity to assist with their financial needs, the Court then exercises its discretion to determine whether it should make an order and if so, what order it considers proper in the circumstances.

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