If you have recently separated or know someone who has recently separated, you may have heard about child support being payable. You are less likely to have heard about another thing called spousal maintenance.
Spousal maintenance is when one partner gives his or her ex-partner financial assistance after the relationship has ended. Spousal maintenance is not the same as child support. Spousal maintenance and child support are two different payment obligations. You do not need to have children to be liable to pay spousal maintenance and you can be required to pay both child support and spousal maintenance.
Broadly, an obligation to pay maintenance may occur when two people have separated and:
- One partner is unable to meet their reasonable expenses from their own personal income or assets.
- The other person has the capacity to pay maintenance. The capacity to pay maintenance is assessed on not just that person’s income, but also his or her property, financial resources and earning capacity.
Following separation, it may be that a person pays for some expenses for their ex-partner, such as for instance continuing to pay half the mortgage repayments for a house the ex-partner still lives in. Payments such as this can potentially be classified as spousal maintenance.
There are the following options in respect of obtaining spousal maintenance:
- By informal agreement. This is where for instance a person agrees to transfer funds or pays for expenses for the benefit of his or her ex-partner following separation without entering into a formal agreement.
- By agreement through Family Court Orders. This is where the two persons set out spousal maintenance arrangements in consent orders filed with the Family Court.
- By agreement through a Binding Financial Agreement. This is where the two persons enter into a Binding Financial Agreement setting out spousal maintenance arrangements.
- By Court Order following contested proceedings. This is where a spousal maintenance order is made by the Family Court after a person has commenced proceedings.
Further information on spousal maintenance can be found in our “Do I have to support my ex-partner?” article here.
Child support is financial support provided by a person to a carer of a child to assist with the costs of caring for the child. Usually, child support will be paid by one parent to the other parent of the child following separation.
Generally a parent is required to pay child support or is entitled to receive child support if he or she has a child under the age of 18 years and has separated from that child’s other parent.
The amount of child support assessed to be paid or received will depend on the age of the child, the incomes of both parents and how many nights a fortnight the child is with each of the parents.
A link to the Child Support Agency’s child support estimator can be found here: child support estimator.
There are the following options in respect of organising child support obligations:
- Self-managed child support. This is the term given to a child support arrangement that is informally agreed between parents.
- Child support assessment. This is where the amount of child support is assessed through the Child Support Agency.
- Binding Child Support Agreement. This is a binding agreement creating enforceable obligations in respect of child support, which can be in addition to or different to the amount of assessed child support required through the Child Support Agency.
- Limited Child Support Agreement. This is another form of binding agreement creating enforceable obligations in respect of child support. However, it is of more limited scope than a Binding Child Support Agreement.
Further information on child support can be found in our “What are my options with child support?” article here.
If you are concerned that you may be required to pay spousal maintenance and/or child support or if you believe you may be entitled to receive spousal maintenance and/or child support, please contact Lynn & Brown to speak with one of our Family Lawyers in Perth.
About the author: Robert Pearson is a Senior Associate who was admitted as a barrister and solicitor of the Supreme Court of Western Australia in 2013 and is an experienced lawyer specialising in Family Law matters.