It is quite common after a separation for one party to have a lower income or less access to funds to meet their living expenses, particularly after a long relationship with children.  In this situation, they may be entitled to claim spousal or de facto partner maintenance for financial support.  However, unlike for child support, there is not an agency to assist with calculating and enforcing this, and it may be necessary to obtain legal advice.

When an entitlement to maintenance arises

The law provides that a party to a marriage or de facto relationship is liable to maintain the other party “to the extent they are reasonably able to do so”, if the other party is “unable to support themselves adequately”.

The law sets out a list of factors to consider in determining these points, including:

  • The income, property and financial resources of each party;
  • Whether either party has the care of a child or a responsibility to support any other person;
  • Whether either party is eligible for a pension or allowance;
  • A standard of living that in all the circumstances is reasonable;
  • The extent to which the payment of maintenance would increase the applicant’s earning capacity by enabling that party to undertake study or establish a business;
  • The duration of the relationship and the extent to which it has affected the applicant’s earning capacity;
  • The extent to which the applicant has contributed to the other party’s financial situation;
  • The financial circumstances of any cohabitation with another person; and
  • Any child support payments.

Assessing the appropriate amount of any maintenance or financial support to be paid requires a detailed consideration of each party’s financial circumstances, including their income, expenses and property.

In Bevan & Bevan (1995) FLC 92-600, the Court found that it was not necessary for the wife to deplete her capital, which she may want to use to purchase a home, in order for her husband who had a much higher income to be liable for spousal maintenance.

Forms of maintenance

Spousal or de facto partner maintenance may take the form of ongoing payments for a period of time, a lump sum payment or the transfer of property.

Following separation, if one party continues to meet joint expenses like home loan repayments for the benefit of the other party, this could also be characterised as maintenance.

Where there is an obligation to pay maintenance, this is usually intended to be on an interim basis, for financial support pending a final property settlement being effected.

If a final agreement or order provides for ongoing maintenance, this obligation would typically be time-limited or for a lump sum rather than indefinite periodic payments.

Process for seeking spousal maintenance

It may be possible to reach an agreement about the payment of maintenance through direct negotiations, with assistance from lawyers or by attending mediation.  If you cannot reach an agreement, it may be necessary for the Family Court to decide whether maintenance should be paid and how much.

There is a time limit for an application for maintenance, which is one year after a divorce order comes into effect for married couples or two years after the date of separation for de facto couples.  If proceedings are not commenced within that time, the applicant would need to seek leave from the Court for an extension of time, including satisfying the Court that hardship would be suffered and that they were unable to support themselves without an income tested pension at the time the limitation period expired.

Recent cases

In Qin & Donato [2023] FedCFamC1A 223, the Court considered the concept of a reasonable standard of living and confirmed that:

  • A person’s current expenses may not extend to their reasonable needs, as a person with no income and who cannot pay any expenses, still has needs.
  • Reasonable needs are to be assessed having regard to the parties’ previous standard of living.
  • Reasonable means reasonable in all of the circumstances, not subsistence.

In Herczog & Herczog [2023] FedCFamC1A 219, the Court confirmed that when considering a person’s reasonable expenses, it can decide to exclude expenses that are unreasonable discretionary expenses, even if they are compulsory under a contract.  In this case, the Court excluded expenses associated with investment properties, saying that the husband’s desire to hold onto investment properties which were running at a loss should not be prioritised over his obligation to pay spousal maintenance.

In Beeston & Quint [2023] FedCFamC1F 658, the Court rejected the wife’s claim for spousal maintenance because she had access to $1.8 million in cash.  The wife claimed that she needed this to purchase a property in her desired suburb, but the Court did not accept that this was necessary in order for her to have a reasonable standard of living or adequate support.

If you would like tailored advice about whether you are entitled to or liable to pay maintenance or financial support, please contact Lynn & Brown Lawyers to enquire about booking an initial consultation.

About the Author: Kate was admitted to the Supreme Court of Western Australia in 2012 and has practised family law for many years. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible but also has experience in court proceedings.

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