Spousal or De Facto Partner Maintenance

The uncertainty of not having an ongoing income stream can be daunting.

Where one party was financially dependent on the other during the relationship, ongoing spousal or de facto partner maintenance after divorce and separation may be claimed by the party who was financially dependent.

Spousal or de facto partner maintenance entitlements or responsibilities arise in limited circumstances. The party claiming the entitlement must be able to show they have the requisite need for the maintenance and are unable to support themselves adequately, and the party required to pay spousal maintenance must have the capacity to pay.

The court will look at a number of factors as set out in the Family Law Act 1975 to determine whether or not to make an order for spousal or de facto partner  maintenance, including but not limited to:

• The parties’ ages and health
• The income, property and financial resources of each party
• The care and control of children
• The responsibilities or commitments to any other person or child
• The standard of living of each of the parties
• The eligibility of either party to a pension, allowance or benefit such as superannuation
• Where parties were married – the duration of the marriage
• Current child support arrangements.

For de facto partner maintenance, the parties must have been in a relationship for at least two years, there must be a child of the relationship, or one party must have made substantial contributions to the relationship and a failure to make an order for spousal maintenance would result in serious injustice.

De facto or spousal partner maintenance can be paid by way of a one-off lump sum payment or over a set period of time by way of regular payments such as at weekly, fortnightly or monthly intervals.

Applications for spousal or de facto partner maintenance must be made within a certain time frame. For spousal partner maintenance, you have until 12 months after getting a divorce to apply for spousal maintenance. For de facto partner maintenance, your application must be made within 2 years of the relationship breakdown.

If you start a new relationship, your spousal maintenance obligations or entitlements may be altered.

We can advise you about the potential spousal or de facto partner maintenance entitlements or responsibilities you may need to consider following a separation.

Given spousal or de facto partner maintenance applications depend highly on the unique circumstances of each partner and whether the appropriate factors have been met, it will be important to get legal advice particular to your situation.