So there’s been a separation. There has been a property settlement to divide the couple’s assets and liabilities. The result may come after an exhaustive affair involving accountants and solicitors examining every facet of the couple’s accounts, income and liabilities.
Upon reaching a property settlement, the couple take their respective lot and it is assumed that they will support themselves off using these distributions without further assistance from each other.
Its only natural that after this lengthy and sometimes costly ordeal that the settlement is considered final.
This is not always the case. That’s often where the issue of spousal maintenance comes in.
In Australia, an ex-partner or spouse is free to make a claim for spousal maintenance support even when the property settlement has been finalised.
What is spousal maintenance?
These are payments made by one partner to another and is separate from child maintenance support. The orders for spousal maintenance can be made between heterosexual or same sex couples, de-facto arrangements and even for the provision of your estate after your death.
The obligation stems from a legal duty for one partner to support the other consistent with their needs whilst also taking into account their capacity to make such contributions. The duty is enlivened when an ex partner or spouse is unable to support themselves financially due to their deficient earning capacity or income.
Time limits?
After the breakdown of a marriage the parties must make an application within 12 months of the date of the divorce. In the instance of a de-facto relationship, the parties have two years to make an application.
It is not uncommon that the court will order a person to make a lump sum payment. More commonly though, the court can prescribe payments on a weekly or monthly period for several years.
How is spousal maintenance calculated?
There is no reliable calculator or set formula as the factors to consider are innumerable. The crux of determining the amount however is usually to first assess the couples respective income and expenses. Additionally, the court will consider the couples circumstances such as their commitments, benefits, standards of living, any creditor rights, child support and the duration and impact of the marriage. The list goes on and the courts have a wide discretion.
Do you have to go to court to get a spousal maintenance order?
The short answer is no. Couples have several options to sort out spousal maintenance agreements. Most commonly the Family Law Act does provide for consent orders or binding financial agreements with the aim for the parties to come to a mutual agreement.
In conclusion
In Australia, the traditional status of the relationship is still in place where one party goes to work and is the bread earner whilst the other is the carer and home maker. This is still the norm however the view shifting with time.
Post separation in the traditional context accounts for this imbalance by acknowledging that a spouse may be the primary carer and has been out of the work force for a significant period of time.
In our experience, at the end of a relationship and a property settlement, the parties are eager to reach close closure and move on. Our recommendation generally is that they reach mutual agreement where circumstances allow for.