When am I obligated to pay spousal maintenance and who should receive spousal maintenance

Following the breakdown of a relationship, questions often arise about spousal maintenance and the ongoing financial support for a party, particularly in circumstances where one party hasn’t worked for reasons including looking after the children, incapacity or age.

Below is a list of frequently asked questions in relation to the end of a relationship and the payment of spousal maintenance.

What is spousal maintenance?

Spousal maintenance is an agreement between former partners where one person will provide continuing financial support to the other after the breakdown of their marriage or de facto relationship. Spousal maintenance can also be referred to as “alimony”, which is the terminology used in the United States.

Spousal maintenance is different to child support or adult child maintenance, which is specifically financial support for children.

Who can apply for spousal maintenance?

A spouse or de facto partner in need of financial assistance from their partner can file an application.

When is spousal maintenance payable?

Generally, spousal maintenance is payable where:

  • One party has a need for financial support;
  • The other party has the capacity to provide that support; and
  • It would be proper in all the circumstances that the support be provided.

How is spousal maintenance paid?

Spousal maintenance can be paid in a few different ways.

It is usually periodic monthly monetary payments from one partner to the other. These can be cash payments, or payment of expenses for a spouse’s daily living costs such as mortgage instalments, payments of rates, utilities, health care costs, and other household expenses.

You can also receive a lump sum final cash payment as part of a property settlement.

Can spousal maintenance be included in a property settlement?

Yes. Spousal maintenance can be an essential consideration when finalising a family law property settlement and it may be included by way of a lump sum.

How do I make a spousal maintenance application?

A spousal maintenance application can be lodged in the Family Court of Western Australia (Family Court) by filing a Form 1 Initiating Application with supporting affidavit evidence and a Form 13 Financial Statement setting out their current financial position. This application can be made together with a final financial property settlement or on its own.

When can I apply for spousal maintenance?

A person can apply for spousal maintenance from the day of separation from their partner or spouse.

Married couples do not need to wait for their divorce to be finalised.

Can I run out of time to apply for spousal maintenance?

Yes, and that time limit depends on if you were married or in a de facto relationship.

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

With respect to de facto couples (including same sex couples), a spousal maintenance application needs to be filed within two years from the date of separation. Once the two year period expires you will also be required to prove hardship before being allowed to make an application for spousal maintenance.

Do I have to pay spousal maintenance?

It depends. The Family Law Act 1975 and the Family Court Act 1997 states that one party to a  marriage or/de facto relationship is liable to maintain the other party to the extent that one party can reasonably do so and if, and only if, the other party is unable to support her/himself adequately.

How long am I required to pay spousal maintenance?

It depends. The duration for paying spousal maintenance is assessed on a case by case basis.

It can be paid on an ongoing basis while divorce proceedings are being finalised. Alternatively it can be paid in one lump sum at the end of a property settlement.

The payment of spousal maintenance can be ordered for an indefinite period of time or it can be ordered for a specific periodic of time with a set end date.

Alternatively, parties can opt out of paying spousal maintenance by entering into a binding financial agreement.

How is spousal maintenance assessed?

The Family Court uses a threshold test, which is sometimes summarised as “need versus ability to pay”.

The Family Court looks at the following factors:

  • Which partner has the care and control of a child of the relationship under the age of 18 years.
  • Your age and physical/mental capacity for gainful employment.
  • The standard of living that is reasonable within the context of the family.
  • Any other adequate factors, such as family income and resources, commitments to support oneself and children.

Can I defend a spousal maintenance application?

Yes. The person defending a spousal maintenance application can file a Form 1A Response to an Initialing Application with an affidavit and Form 13 Financial Statement in support to the Family Court.

Can Lavan help me?

Lavan’s Family Law team have the expertise and experience to successfully advise you with respect to making or defending a spousal maintenance application.

Our team also has the advantage of working with specialist family law barristers, tax lawyers, financial planners and accountants to do this as efficiently and successfully as possible.