If you have left a relationship and are struggling to cover everyday expenses, you may be entitled to spousal maintenance. Spousal maintenance does not just arise if couples are married, the laws also apply to domestic relationships.

What is Spousal Maintenance?

Spousal Maintenance is defined in the Family Law Act 1975 (Cth) as financial support paid by one spouse to their former spouse.

The test in relation to Spousal Maintenance is set out in Section 72 , and has two parts:

• Firstly, you will have to prove that you cannot support yourself to an adequate standard from your own income or financial resources; and

• Secondly, you have to prove that your spouse has the capacity to meet your expenses from their own income or financial resources.

The Court must be satisfied that both these elements have been demonstrated in order to make an order for spousal maintenance.

How do I prove I need it?

The burden of proof to establish the claim for spousal maintenance lies with you (the person wanting to be maintained), which means you are the one that has to prove it. The standard of proof is on the balance of probabilities (as opposed to ‘beyond reasonable doubt’, which is what you hear in the tv lawyer dramas and which applies usually to criminal matters). What this means is that the judge has to weigh up which version of facts they find to be more true, yours or your spouses.

To satisfy the first element, your ‘need’ for spousal maintenance, you will have to show your average weekly income and your average weekly expenses. This is done by completing a court document called a Financial Statement. Then your spouse will have to file their own Finanical Statement which contains the same information.

The Court will not consider income tested pension, allowance or benefit you receive from Centrelink. Therefore, when considering whether your income covers your expenses, don’t take into account your Centrelink payments.

The court will consider any child support you are receiving.

How much will I get paid?

Spousal Maintenance payments are intended to meet all reasonable living expenses for the party in need, for example, the payment of rent, food, clothing and other expenses, either on an Interim or Final basis. An Interim order means that the judge will make an order for spousal maintenance just until the property division is determined, a future court date, or a specified date, such as until you are due to go back to work. A Final Order means that the maintenance will be ongoing. Generally, the Court will not make an ongoing order for Spousal Maintenance if it can avoid doing so. Instead, it may make final property orders that see you getting a larger percentage of the property pool.

There is no prescribed formula for determining the amount of spousal maintenance to be paid. The court will consider the reasonable day to day expenses of the applicant and also those of the respondent in assessing whether spousal maintenance should be paid and how much. The court will look at the financial needs of the applicant and the financial capacity of the respondent and make a discretionary judgment as to how much should be paid.

Am I expected to work?

If you are claiming spousal maintenance because you are the primary carer for the children who are still below school age, the court will likely not require you to seek employment while they still require full-time care. However, once the children reach school age you are likely to be required to take steps to secure employment, provided you do not have other circumstances that make that unreasonable.

In assessing your claim for spousal maintenance, the court will consider the following:

• The age and health of both parties;

• The income, property and financial resources of both parties and their capacity for employment;

• Whether either party has the care of a child;

• Whether either party is responsible for supporting any other person;

• Whether either party is eligible for any social security or superannuation benefit;

• What is a reasonable standard of living;

• How much the applicant party has contributed to the other party’s financial resources;

• The length of the relationship and to what extent it has affected the earning capacity of the applicant;

• Any present or future liability of either party for child support payments;

• Any financial agreements between the parties;

• Any other circumstances the court considers should be taken into account (Section 76, Family Law Act).

The law is there for a reason. If you are struggling to support yourself and/or your children and your partner is withholding financial support, we can assist negotiate spousal maintenance or assist you to prepare a court application.