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Insights

In some circumstances a Court may order one party to pay to the other what is known as ‘spousal maintenance’. Despite the name, there is a potential entitlement to maintenance for individuals after separation whether a party to a marriage or defacto relationship.

The Family Law Act provides that an entitlement to spousal maintenance will arise if the parties fit the following criteria:

  1. Whether the lower income earner of the relationship has a “financial need” for maintenance to be paid; and
  2. Whether the higher income earner of the relationship has the “financial capacity” to pay maintenance.

Spousal maintenance is not gender biased, and the spouse liable for the payment of maintenance could be the Husband or the Wife.

Should the Court deem one party is entitled to the payment of spousal maintenance, no particular formula exists to calculate the amount that should be paid.

The amount to be paid will be determined in one of two ways:

  1. By agreement between the parties; or
  2. By decision of the Court exercising its discretion.

Generally the factors that will be taken into consideration will include the reasonable cost of living on a weekly basis. A main topic of dispute is what may constitute “reasonable”. An assessment will be based on the comparative incomes of the parties and their weekly expenses, however for the spouse entitled to maintenance, an obligation will still exist for them to pursue employment or gain further qualifications in an effort to meet his or her own reasonable expenses. Spousal maintenance orders are mostly made on an interim basis, with a push to move away from such payments for the long-term. An order may provide for periodic payments or by way of a lump sum payment depending on the particular needs and circumstances of the parties.

If you have separated and think you may be entitled to spousal maintenance, we encourage you to seek professional legal advice from one of our experienced practitioners at Kells.

We are here to help.

If you would like to speak to Ashleigh about this article or any family law matters please call 4221 9311.