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Spousal Maintenance

Thursday, April 19, 2018
Spousal maintenance is a payment by one spouse (including de facto spouse) to another for their day to day expenses. The payment may be voluntary or pursuant to a Court Order. 

The Family Law Act says that: “A party to a marriage is liable to maintain the other party, to the extent that the fist-mentioned party is able to do so, if, and only if, that other party is unable to support herself or himself adequately...” An adequate reason for a spouse not being able to support themselves might be because they have care of young children, because of their age/health, or some other reason.

The nature of spousal maintenance payments is that they are usually a temporary fix, so that one party is not suffering unnecessary hardship pending the finalisation of their property settlement. Often, maintenance payments will cease once the property settlement has concluded, but in some circumstances it is appropriate that maintenance continue to be paid for a period of time.

When assessing how much (if any) maintenance should be paid, there is an assessment of the parties’ income (including capacity to earn an income), capital, financial resources, and expenditure. There might be dispute as what is “reasonable” expenditure.

Spousal maintenance can be paid in many ways e.g. a lump sum, a periodic payment (weekly, fortnightly, monthly) or by way of paying a mortgage, phone bill, private health insurance, rent or the like.

Spousal maintenance should not be confused with child support which is for children, only. Therefore, when there is a claim for spousal maintenance, the claim will be scrutinised to identify what expenses relate only to a spouse, what is shared with the children and what relates only to the children.    

Financial statements, tax returns, receipts, bank statements and pay slips are all important evidence in spousal maintenance matters. Those who claim spousal maintenance must prove their expenses and needs and the income and property available to them. Both parties must give full and frank disclosure of their financial positions. Luxuries may or may not be considered – in general they are not. 

Spousal maintenance is now regarded as a stop gap measure, giving time to a spouse to get a job or acquire skills to support themselves, and not a right to be supported for the rest of their life.  

If you have questions about whether spousal maintenance may be appropriate in your circumstances, or if you have any other family law enquiry, please call us on (07) 5458 9000.

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