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Family Law and spousal maintenance

Spousal maintenance in family law

Spousal maintenance is a payment that a person may be required to make to their former spouse or de facto partner to assist them with their reasonable living expenses. It is a payment that is made between former partners that is paid separately to child support payments or any property settlement.

In accordance with the Family Law Act 1975 (“the Act”) one party may be “liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately”.

To be eligible for such payments the party must be unable to support herself or himself adequately due to the fact that they have the care or control of a minor child of the relationship, by reason of age or physical or mental incapacity for appropriate gainful employment, or they have another adequate reason.

One party might agree to pay their former spouse or partner spousal maintenance because they accept that it should be paid in accordance with the provisions of the Act. If they do not agree to pay the maintenance then it may be necessary to apply to the court seeking an Order for spousal maintenance to be paid. An application can then be made for urgent maintenance that is maintenance that is paid immediately due to an urgent need for it, or interim maintenance which is paid while the parties sort out their division of property. Final Orders for maintenance may also be sought and made where the maintenance is required in addition to a division of property. A party will be required to pay spousal Maintenance as either a lump sum or as periodic payments or as a combination of both.

Even if you have already separated your assets with your former partner you may still be entitled to spousal maintenance in addition to that division of property.

Upon hearing an application for spousal maintenance the court will consider a number of different factors in order to determine if a party is or is not eligible to receive spousal maintenance payments and whether or not the other party is reasonably able to make those payments.

It is important to note that when two parties get divorced the parties have only 12 months from the date of the divorce to make an application for spousal maintenance. Similarly former de facto partners have 2 years from the date of their separation to make such application.  

If you are the party that may end up paying spousal maintenance then you should consider whether or not you can come to an agreement with your former spouse or de facto partner about the issue. If you are able to do so then you must instruct a solicitor to prepare a legal document properly recording that agreement in order to protect yourself from a future claim being made by the other party contrary to the agreement reached.

It is important for parties to obtain proper legal advice from a lawyer experienced in Family Law to assist them to work out whether or not they should be receiving or paying spousal maintenance following their separation from a spouse or former de facto partner and to do so within the time limits set by the Act.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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