What is spousal maintenance?

Spousal maintenance (referred to by most Americans as “alimony”) 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.  Spousal maintenance can be an essential consideration when finalising a family law property settlement.

In Western Australia a spouse would bring the application under the Family Law Act 1975 (Family Law Act), whilst a de facto partner would bring the application under the Family Court Act 1997 (WA) (Family Court Act).

What is spousal maintenance?

The legislation in Western Australia does not expressly define spousal maintenance, however it is commonly understood to be payments, either periodical or lump sum payments, made by one spouse (or de facto partner) to their former spouse (or former de facto partner) to assist them to support themselves after separation or divorce.

This is a separate financial assistance payment to child support. Child support payments are for the financial support of the child.  Spousal maintenance payments are for the financial support of the former spouse/partner.  Child support payments take priority over spousal maintenance.

Who can apply for spousal maintenance?

The spouse or de facto partner, who is in need of financial assistance from their partner as a result of the breakdown of the marriage/relationship, is a person who may be entitled to bring a spousal maintenance application.

When can you apply?

A person can apply for spousal maintenance immediately following separation from their partner/spouse i.e. from the day of separation.  It is important to note that married couples do not need to wait for their divorce to be finalised.

You only have 12 months after the date of your divorce order to bring a spousal maintenance application.  After the 12 months has expired you will have to make a preliminary application to prove hardship in order to bring an application for spousal maintenance.

With respect to de facto couples, a spousal maintenance application needs to be brought within 2 years from the date of separation.   Once the 2 year period expires you will also be made to bring a preliminary application and prove hardship before being allowed to make an application.

When does the Court award a spousal maintenance claim?

The procedure the Family Court must follow in a spousal maintenance claim is to examine a threshold test under section 72 of the Family Law Act (section 205ZC of the Family Court Act).  The threshold test requires the Family Court to examine two criteria:

  1. The liability of a spouse to pay - which arises "if and only if" the other spouse is unable to support himself /herself "adequately" by reason of any of the following three matters:
  2. 1.1 the care and control of a child of the marriage under 18 years of age;

    1.2 age or physical or mental incapacity for appropriate gainful employment; or

    1.3 for any other adequate reason;

         having regard to section 75(2) factors which include but are not limited to the following:

    1.4 the age and state of health of the parties;

    1.5 the income, property and financial resources of each of the parties;

    1.6 whether either party has the care of an child under 18 years of age;

    1.7 the commitments of each party; and

    1.8 the cost of a reasonable standard of living; and

  3. If liability to maintain is established - ascertaining its limit which is governed by the "extent" to which he/she is "reasonably able to do so".

This test is sometimes summarised as "need versus ability to pay".   If the Court is satisfied that the threshold test has been met, namely that one party is unable to support themselves and the other has the capacity to make payments to them 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.

When does a spousal maintenance order cease?

An order for spousal maintenance will cease upon the death of the dependent party in both de facto and married cases or on the date specified in the orders.  It can also cease in the case of the dependent party marrying another person.

Why is someone compelled to pay maintenance to the other person?

The rationale behind one party paying spousal maintenance to another party stems from the understanding that in most instances, especially in traditional relationships, one of the parties will sacrifice career progression and income earning capacity to stay at home and raise the children, whilst the other partner has the ability to progress their career and income earning capacity over the course of the relationship.

It follows that after a certain period of time, when the parties separate, there is either a situation where one of the parties is still the primary caregiver for the children and in which case is unable to realise their full income earning capacity or as a result of the long term relationship, is now significantly disadvantaged with respect to income earning capacity as opposed to their former partner.

Lavan Legal Comment

Spousal maintenance applications can be complex. When deciding to make an application or defend an application, it is very important that you are in a position to disclose and explain your current financial position and likely financial position after a property settlement.  Once this has been done you are in a position to clearly establish whether you have a need to bring an application (looking at your income and expenses) or capacity to pay the other party (where your income earning capacity exceeds your needs).  This can sometimes require an intricate forensic analysis of your financial circumstances.  It is recommended that you seek legal advice if you think you may be a party who is eligible for spousal maintenance or if you are a party that may be asked to pay spousal maintenance.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.