What is spousal maintenance?

Spousal maintenance is financial assistance paid from one spouse or de facto partner to the other after separation.

There is no automatic entitlement received or requirement to pay spousal maintenance. When and how spousal maintenance is payable depends on the particular financial circumstances of the parties involved.

To obtain a court order for spousal maintenance the applicant must establish that:

• they do not have the ability to support themselves financially; and
• the other party has the financial capacity to contribute to their financial support, having regard to their own reasonable expenses and commitments.

Is spousal maintenance paid periodically or in a lump sum?

There are different types of spousal maintenance, including periodic spousal maintenance (for example, paid weekly or monthly) and lump sum maintenance.

Periodic maintenance enables ongoing financial support toward day-to-day expenses. Lump sum maintenance may be appropriate in some situations, such as where there is a need for a large amount to purchase a car or furniture, or in circumstances where the party required to pay maintenance cannot make payments on an ongoing basis.

Urgent spousal maintenance

Urgent spousal maintenance can be ordered pursuant to section 77 (for married couples) and section 90SG (for de facto couples) of the Family Law Act 1975.

Applications for urgent maintenance should only be made when there is an immediate need of financial assistance. They are generally heard by the court in circumstances where there is limited evidence available and/or insufficient time to investigate the financial affairs of the parties, but there is a pressing or desperate need for a pragmatic “stop-gap” solution in the meantime.

In some circumstances applications for urgent spousal maintenance may be heard by the court without the other party being present.

In the case of Sadlier & Sadlier [2015] FamCAFC 130 the court stated that “different criteria apply in applications for urgent, as opposed to interim, maintenance. In a section 77 application, the primary judge is obligated to consider (a) whether there is an immediate need for financial assistance; (b) practicability of making an order in the circumstances, particularly where there is sufficient evidence to justify making an interim or final maintenance order; and (c) the period of the order, which should be for a relatively short duration.” 

Interim spousal maintenance

Orders for interim spousal maintenance, which are made pursuant to section 74 of the Family Law Act 1975, require that maintenance be paid on a temporary basis until such time as a final hearing (also known as a trial). When considering an application for interim spousal maintenance, the court will require more information as to the financial circumstances of the parties (as compared to an application for urgent maintenance).

Final orders for spousal maintenance

Like interim spousal maintenance, final orders for spousal maintenance can be made pursuant to section 74 of the Family Law Act 1975, and can be made by agreement between the parties or by a court at a final hearing.

A determination by a court at final hearing will involve a detailed and thorough consideration and testing of the evidence. At a final hearing both parties are typically required to undergo cross examination in the witness box.

Will Centrelink payments be considered in applications for spousal maintenance?

Section 75(3) of the Family Law Act 1975 provides that an income tested pension, allowance or benefit received by a person applying for spousal maintenance shall be disregarded when determining the capacity of that party to maintain themselves pursuant to section 74 of the Act.

In other words, in applications for either interim or final order spousal maintenance, if the person seeking maintenance receives an income tested pension, allowance or benefit, this income will not be taken into account when assessing their ability to support themselves.

In cases of urgent spousal maintenance however, the court may take Centrelink payments into account. In the case of Milano & Nolan [2018] FCCA 3901, Justice Mercuri noted that there is nothing in the law that prevents taking into Centrelink payments when considering the immediacy of an applicant’s financial needs. In this case the court decided that:

1. there was insufficient evidence to support the wife’s claim for urgent weekly maintenance when considering her financial circumstances, including her receipt of Centrelink payments; and
2. the wife’s application for weekly spousal maintenance could be dealt with at an interim defended hearing after the relevant evidence had been filed and considered.

If you would like advice about spousal maintenance please contact our family law team on 9890 3321.