When love ends but bills don’t: What is Interim Spousal Maintenance?
After a relationship breakdown, one of the most pressing concerns for a separated person is often how they are going to be able to financially support themselves going forward. This is particularly so if it is now down to them alone to meet their bills and living expenses which were previously shared with or paid by their former partner.
In Australia, the family law legislation provides for spousal maintenance. Spousal maintenance is entirely separate from child support and it refers to monetary payments from one spouse to the other in circumstances where that person is not able to financially support themselves.
Where child support addresses the cost of raising children, spousal maintenance addresses the reasonable living expenses of a party when that person cannot meet those expenses themselves.
However, one party alone not being able to financially support themselves is not sufficient for a spousal maintenance claim to be successful. One party’s need must be compared to or balanced with the other party’s ability to pay. In short, a claim for spousal maintenance is based on the needs of one party and the capacity of the other party to pay.
Spousal maintenance can be sought on a final basis as part of the overall financial settlement between the parties, or on an interim, or shorter-term basis, while the balance of the settlement is being negotiated and resolved.
Despite the name, the concept of spousal maintenance is also applicable in de facto relationships, not just marriages.
Pursuant to the Family Law Act 1975 (Cth), a person may be entitled to spousal maintenance if they are unable to adequately support themselves due to:
having the care of a child of the relationship under the age of 18;
their age or physical or mental incapacity;
any other adequate reason, such as limited earning capacity or lack of access to income or assets.
An application for spousal maintenance generally must be made within 12 months from a Divorce Order coming into effect, or within 2 years from the end of a de facto relationship. If a spousal maintenance application is being made on an interim basis, it is generally occurring well within these timeframes. But if you remarry then you are not able to seek spousal maintenance from your former spouse/partner, and if you commence a new de facto relationship, your new partner’s income and their ability to assist you financially will be taken into account in an assessment of your need for spousal maintenance from your former spouse.
Most parties to a family law matter are not particularly willing to voluntarily make a formal and ongoing cash payment to their former spouse. As a result, an application for interim spousal maintenance is often required by issuing a Court application. The process of applying to the Court for such an interim spousal maintenance payment can be expensive in and of itself and it must be considered carefully in a cost vs benefit assessment of making such an application.
Sometimes, informal interim spousal maintenance is already being paid by one party for the benefit of the other, such as when a mortgage, rent or outgoings are paid by one party on behalf of the other, and also in the payment of expenses such as private health insurance or motor vehicle expenses for example. You should carefully consider what your former partner is already paying on your behalf, if anything, as part of a consideration of your need for interim spousal maintenance.
The issue of spousal maintenance, like most aspects of the family law jurisdiction, is discretionary and outcomes can vary significantly depending on individual and family circumstances. Interim spousal maintenance can provide vital financial support for a party post the breakdown of a relationship. Legal advice from an experienced family lawyer will be crucial to determine whether you may be eligible to make an application for interim spousal maintenance from your former partner.
The Family Law team at Harwood Andrews has expertise in the complexities of interim spousal maintenance. If you need advice in relation to spousal maintenance, or to make a start on your property settlement negotiations generally, click here to book an appointment with one of our family lawyers.
Tara Paatsch
Principal Lawyer
M 0412 660 842 | T 03 5225 5254
E tpaatsch@ha.legal
