Family Law Library

What are my rights concerning spousal maintenance?

There is no automatic right to receive or a duty to pay spousal maintenance. In certain circumstances, separating couples can have an obligation to provide ongoing maintenance for their former partner. The Family Law Act provides that one party is liable to maintain the other party to the extent that party can reasonably do so and only in circumstances where the other party is unable to support him/herself adequately. Spousal maintenance is different to child support.

The decision to order spousal maintenance and how much you or your former partner should receive is based on a range of factors. The court is required under the Family Law Act to take the following factors (amongst others) into account:

  • the ability of the other spouse to pay,
  • the standard of living of the spouses,
  • the income capacity of the spouse claiming maintenance and whether this has been negatively impacted by the marriage,
  • any child support that is being paid and
  • the health of the spouses.

Even if one party cannot adequately support him/herself the other party is only liable to support that party so far as they are reasonably able to do so.

The courts also have an obligation requiring them to ensure that any Orders made finalise as far as practical the financial relationship between the parties. This means that where a spousal maintenance order applies, the tendency is for the order to only apply over a short period of time. Certain events will also bring an obligation to pay spousal maintenance to an end. For more information, see here.

Where the property settlement is not yet finalised, an interim spousal maintenance order be made in response to an urgent application.

De facto partners (and same sex partners) can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

Urgent applications and Interim Orders for spousal maintenance

Spousal maintenance is usually considered as part of an overall settlement of financial matters, although, the Court does have the power to make Urgent and Interim Orders for spousal maintenance until a final trial is reached.

How long do spousal maintenance Orders apply?

A spousal maintenance order will automatically end if the party receiving maintenance dies or marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the order set aside.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have extensive experience negotiating property settlements generally. Specifically, we can advise on whether spousal maintenance is likely to be a relevant consideration for your situation. We can also advise on the merits of negotiating for or applying to the court for spousal maintenance.

Mathews Family Law is an Australian law firm. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.