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Family Law > Spousal Maintenance

Spousal Maintenance

We can assist you with making or defending your application when you need to know your options and your rights and you want swift attention to your Family Law concerns. The Anumis Dream Team has your back. We’ll listen to you, advise you, mediate, negotiate and litigate to take best care of all your legal needs.

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Expert advice and legal representation if you need to make or defend your spousal maintenance application

If you are married (or you were married)  and your current or former husband or wife is in circumstances where they cannot adequately support themselves, spousal maintenance is the financial support you pay them. One of the key reasons for the law of spousal maintenance is to make sure that that a former partner makes a fair contribution to the other partner.

The Family Law Act  1975 (Cth) governs spousal maintenance. After separation a party may be liable to maintain the other, to the degree that they are reasonably able, if the person who applying for spousal maintenance cannot support themselves adequately because:

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They are looking after a child of the relationship who is not yet 18 years old

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their age, physical or mental capacity is such that they cannot be employed

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any other adequate reason

If you are uncertain as to whether you are eligible to claim spousal maintenance from your former partner, or you need to defend your claim, then call now on 07 5455 6347, email or sms and take advantage of your complimentary chat with Dr John Cronin or Nadine Love so that you can better understand your options.

Are you eligible for spousal maintenance?

Under the Family Law Act 1975 (Cth) while not everyone is entitled to Spousal Maintenance, if you were in a marriage or de facto relationship that has broken down irretrievably you may be eligible for spousal maintenance if:

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You are unable to work due to health issues, for example if you suffer from a physical disability or mental health challenge; or

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During your relationship, you had to give up work to care for a child, and therefore you were unable to re-enter the workforce; or

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You do not have the necessary experience to enter the workforce

If your eligibility for spousal maintenance is assessed by a court or tribunal, they must disregard your entitlement to an allowance, benefit or income tested pension.

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When might you not be eligible to apply for spousal maintenance?

Each application for spousal maintenance is assessed on its own merits. You may not be eligible for spousal maintenance if you have:

  • Married again
  • Become involved in a de facto relationship and the Court deems that your new financial circumstances do not justify your claim for spousal maintenance

Can I claim spousal maintenance if I was in a de facto relationship?

Under s 90SB the Family Law Act 1975 (Cth) if you can satisfy one of the following then you can claim maintenance: 

  • You and your de facto partner have a child of the relationship
  • You have made a substantial contribution during the relationship
  • Your de facto relationship was registered under state or territory law
  • You and your de facto partner have been in a relationship for two years
  • A failure to make an order in your favour would result in a serious injustice

Are there time limits to apply for spousal maintenance?

Yes, there are time limits for making an application for spousal maintenance.

If you were married, you must apply for spousal maintenance within one year of your divorce becoming absolute.

If you were in a de facto relationship, you must apply for spousal maintenance within two years from separation.

In some situations, the court will allow an application outside of these time limits.

Can you lose Spousal Maintenance?

Yes. If your circumstances change, your Spousal Maintenance payments can be impacted. For example, if you find work and therefore your financial situation improves, you may no longer need your Spousal Maintenance payments. A Spousal Maintenance award can be varied by applying to the Court. An application to end or change a spousal maintenance award is decided on its merits.

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How do you apply for spousal maintenance?

You will need to lodge an application in the Federal Circuit and Family Court of Australia. You may need to apply for one or more types of maintenance depending on your situation:

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If your application is urgent – You can make an application for urgent maintenance

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If you have a current general need for maintenance – You can make an interim order for spousal maintenance.

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If you have a future need for maintenance – You can make an application for a final order for spousal maintenance

If you are eligible for spousal maintenance, the court will then determine whether you are unable to support yourself. The court will also take into account whether your former partner can support themselves and has available funds to support you.

What is the difference between spousal maintenance & child support?

Spousal maintenance and child support payments are not the same thing. While both are payment obligations, they are different. Child maintenance or child support is an amount of money payable by one parent to the other for the purpose of supporting the child or children of the relationship. Spousal maintenance is the amount of money that one party to a marriage or de facto relationship could be obliged to pay to the other party to the relationship after separation.

Spousal Maintenance can be one or a combination of:

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Periodic payments

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A lump sum payment

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Payment of ongoing expenses

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Payment of a one-off expense

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Use of an asset, for example a vehicle or living in the family home until the finalisation of property settlement

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How is spousal maintenance calculated?

The amount and form of Spousal Maintenance varies from case to case, because each person’s circumstances differ so widely.  However, the same factors are taken into account whether you were married (s 75(2) Family Law Act 1975 (Cth)) or whether you were in a de facto relationship (s 90SF(3) Family Law Act 1975 (Cth)).

In the list of criteria below ‘you’ and your’ refers to you or your former partner.

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Your age and health

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Your responsibilities to support another person

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The terms of any financial agreement that binds either you or your former partner

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Your income, property, and financial resources

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Your physical and mental capacity for appropriate paid employment

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Whether you have care of a child of the marriage or relationship under 18 years of age

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Your financial needs and obligations to support yourselves and your legal dependants

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Your eligibility of for a pension, allowance, or benefit under any law of the Commonwealth, state, or territory or under any superannuation fund or scheme and the rate of any such pension, allowance, or benefit

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Your standard of living that in all the circumstances is reasonable following separation

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Whether the payment of maintenance would increase earning capacity by allowing you to undertake a course of education or training to gain employment, or to establish a business

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The extent to which the person who is seeking maintenance has contributed to the income, earning capacity, property, and financial resources of the other

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The duration of the marriage and the extent to which the marriage has affected the earning capacity of the person seeking maintenance

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The need to protect you if you wish to continue your role as a parent

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If either of you is living with another person and the financial circumstances relating to those living arrangements

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The terms of any court order made or proposed to be made in relation to the property of the parties

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Any child support under the Child Support (Assessment) Act 1989 to be paid

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Any other facts or circumstance that must be considered

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Do you need a family lawyer to calculate spousal maintenance?

Your circumstances are complex and unique, aren’t they? Before you make a claim for Spousal Maintenance,  it is important for you to seek legal advice so that you can more fully understand whether you are eligible and how you meet the multiple considerations the Court must give when dealing with Spousal Maintenance. Every case is different. Your situation deserves time and thought so that you understand the options available to you. We recommend that you get legal advice from a family lawyer as soon as you can.

Contact us today for an obligation free consultation

If you’d like to discuss your entitlement to Spousal Maintenance or you have questions about how any claims for Spousal Maintenance may affect you, call Nadine Love or Dr John Cronin on 07 5455 6347 or email admin@anumis.com.au today for your complimentary chat.

We look forward to hearing from you and will be happy to assist you.

Meet Our Team

Dr John Cronin

Dr John Cronin holds a Master’s Degree in Business Management, a PHD in socially responsible investment, and is pursuing a further PHD in superannuation law. In his earlier engineering career, he led numerous large-scale equipment design and infrastructure development projects. A former financial and investment advisor, Dr John has a wealth of experience across banking, finance, and investment.

Nadine Love

Nadine Love holds a Master’s Degree in Dramatherapy. In her earlier career as an author, mentor and trainer through her books, products, and coaching services she assisted people to transform their personal and professional lives to find confidence, clarity, success, and wellbeing. Nadine was
awarded the 2020 NSW Bar Association Prize for Civil Litigation and Evidence.

You can depend on our Commercial Law and Family Law firm to get to know you and your needs in depth. Our expert legal advice, courteously tailored to your specific circumstances, is at your right hand to that you can make well informed choices round the clock. We have your back.

To make your appointment or for further information: admin@anumislegal.com.au
or call 07 5455 6347

 

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