Family law & spousal maintenance

Does Spousal Maintenance Law affect you in Australia?

Spousal maintenance is financial support paid by one party of a relationship to their former partner in circumstances where they are unable to adequately support themselves. It does not matter whether the parties were married or were in a defacto relationship.

Section 72 of the Family Law Act  provides that a party to a marriage is liable to maintain the other party to the extent that the first party is reasonably able to do so if the other party is unable to support himself or herself adequately. Section 90SF of the Family Law Act contains similar provisions in relation to defacto relationships.

When will Spousal Maintenance be payable?

Maintenance orders can be made by agreement but failing agreement it will be necessary to make an application to the court.

What does a court take into account before making a Maintenance order?

A court must first consider if a party is unable to support himself or herself adequately whether:

1. By reason of having the care and control of a child.
2. By reason of age or physical or mental incapacity for appropriate gainful employment.
3. For any other adequate reason.

If a court determines that a person is unable to support themselves adequately then it must consider whether the first mentioned party is reasonably able to do so.

In applying these principles the court must take into account the matters referred to in section 75(2) for married couples and section 90SF(3) for defacto couples.

Those matters are generally:

1. The age and state of health of the parties.
2. The income, property and financial resources of the party.
3. Whether either party has the care and control of a child of the relationship.
4. The commitments to enable the party to support themselves and children.
5. The responsibilities of either party to support any other person.
6. A standard of living that in all the circumstances is reasonable.

Does Australian Law have Alimony?

No, there is no such thing as “Alimony” in Australia. Alimony is an American legal concept which is similar to what we refer to here in Australia as “Spousal Maintenance”.

How can I calculate Spousal Maintenance?

There is no online spousal support calculator like there is for child support. You can calculate spousal maintenance by the following:

1. Calculate your taxable income and your necessary expenses.
2. Do the same for the other party.
3. If there is a shortfall for one party and a surplus for another party then it may be open to a court to make an order for the payment of spousal maintenance for a specified period until the person who is unable to adequately support themselves can get back on their feet.

Urgent Family Law Cases

Sections 77 and 90SG of the Family Law Act enable a court to make urgent maintenance orders if one party is in immediate need of financial assistance. In cases of urgency requests can be made for the court to determine matters relatively quickly. A special request would need to be made to the court for this to occur.

What orders can a court make?

Courts can make the following maintenance orders:

1. Payment of a lump sum.
2. Payment of a periodic sum.
3. Transfer of property.

Orders can be made for a fixed term, for life or until further order and the court can otherwise impose conditions or make any other orders that is considers necessary.

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