Spousal Maintenance and De Facto Partner Maintenance

Two types of Spousal Maintenance application

The Family Court or Federal Circuit Court deal with two types of spousal maintenance applications:

1) Spousal maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves

2) De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.

Under the Family Law Act 1975 (Cth), a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

What does the court consider when making a decision about spousal maintenance?

The court considers the needs of an applicant and the respondent’s capacity to pay. The court considers the following about both of you:

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Your age and health

Your income, property, and financial resources

Your ability to work

What is a suitable standard of living, and

If the marriage has affected your ability to earn an income.

The court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.

Do I still receive spousal maintenance if I start a new relationship?

You are not entitled to maintenance if you marry another person unless the court otherwise orders. If you start a new de facto relationship the court will take into account the financial relationship between you and your new de facto partner when considering whether you are able to support yourself adequately.

Time limit to apply for spousal or de facto maintenance

If you were married, applications for spouse maintenance must be made within 12 months of your divorce becoming final.

If you were in a de facto relationship, your applications for de facto partner maintenance must be made within 2 years of the breakdown of your de facto relationship.
If you do not apply within these time limits, you will need special permission of a court. This is not always granted.

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