What is Spousal Maintenance
in Family Law?
The New South Wales (NSW) court has the power to order one party to pay ‘spousal maintenance’ to the other on an ongoing basis. The goal of the legislation however, is to ensure that there is a ‘clean break’ between the parties. Therefore, it is much more likely that spousal maintenance, if payable, will only be applicable on a short-term basis.
A party to a marriage or a de facto relationship is liable to maintain the other to the extent that they are reasonably able to do so if, and only if, the other partner is unable to support themselves adequately.
WHAT IS SPOUSAL MAINTENANCE?
Spousal maintenance is money paid from one spouse to another because the receiving spouse cannot provide for themselves adequately without financial assistance from their spouse.
In order for spousal maintenance to be payable, the receiving spouse must show that they have a need which they cannot meet (without access to public funds) and that the paying spouse has the financial ability to pay.
IS SPOUSAL MAINTENANCE STILL APPLICABLE IN A DE FACTO RELATIONSHIP?
Yes, if you have been living together for two years, have a child together, or one partner has made significant contributions to the other pre-relationship break up, then spousal maintenance may be applicable to your circumstances.
Seek the advice of a divorce or family lawyer to find out if your situation qualifies for de facto spousal maintenance or support.
HOW DO I QUALIFY FOR SPOUSAL SUPPORT OR MAINTENANCE?
The reasons for spousal maintenance being payable may be:
- One party having the care of the children of the relationship under the age of eighteen years; or
- Their age or health considerations mean they cannot earn an income; or
- Any other adequate reason including your income and ability to work, property, and financial resources
The Court will also take into consideration any new marriage or de facto relationship you have entered into when financially qualifying you for spousal support or maintenance. The difference in income between both parties is also a major factor in determining this.
Seek the advice of a divorce or family lawyer to find out if your situation qualifies for spousal maintenance or spousal support.
WHAT ARE MY FINANCIAL OBLIGATIONS DURING SEPARATION?
Spousal maintenance is completely separate from child support or child maintenance which is applicable in most family break ups.
Spousal support or maintenance payments are to support your former spouse through the separation period and can be applicable to your separation whether you have children or not.
Most people think of their financial obligations during divorce or separation as dividing up their assets such as their family home and possessions during a property settlement agreement.
Spousal maintenance is relevant to income and not assets, and ensures both spouses are able to financially support themselves during the break up, especially if one spouse earns considerably more than the other and you have been together a long period of time.
However, unlike property settlement and child support, spousal maintenance is not a definite requirement.
HOW IS SPOUSAL MAINTENANCE CALCULATED AND DETERMINED IN NSW?
There are many factors that influence spousal maintenance in NSW and Australia. It is not influenced by gender but by income and the ability of each spouse to work and earn their income.
Because of the wide discretion of the Court and the high amount of factors considered, it is hard to determine an exact amount of spouse maintenance you would be required to pay or even if you or your spouse would qualify at all.
Payment of spousal maintenance can be made weekly, fortnightly or monthly and in some instances, it can also be paid by lump sum as part of a property settlement.
The spouse receiving the maintenance payments does not have to pay income tax on these payments. The spouse paying the maintenance cannot claim a tax deduction on these payments also.
HOW LONG IS SOMEONE ENTITLED TO GET SPOUSAL MAINTENANCE OR SUPPORT FOR?
When a spouse maintenance order is made, it is subject to variation if either party’s circumstances change.
In practice, spousal maintenance is usually only payable until the property matter is finalised and to get each spouse through the interim stage. Each party will be expected to take steps to earn an income after separation.
Remember, the end goal of this legislation is to encourage a ‘clean break’ where each party no longer has any financial obligations to the other so spousal support is usually a short term solution and has a predetermined time frame.
IS SPOUSAL SUPPORT THE SAME AS ALIMONY?
The term alimony has woven itself into our language through American television and pop culture but actually does not exist in Australia.
Our equivalent is spouse maintenance or as some may refer to it as; spousal support. The premise is essentially the same to that of alimony where financial support is given by one spouse to another in order to support them after a relationship break up.
However, the finer details about what qualifies you for spousal support or maintenance is different to those in America.
Make sure you always seek the advice of a divorce or family lawyer to find out if your situation qualifies for spousal maintenance or spousal support.
