Swanwick Murray Roche Lawyers

74 Victoria Parade, Rockhampton QLD 4700   •   (07) 4931 1888

Spouse Maintenance

What is spouse maintenance?

Spouse maintenance arises where a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

The Family Court or Federal Circuit Court deal with two types of spousal maintenance applications:

  1. Spouse maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.
  2. De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.

Common questions about spouse maintenance…

What does the court consider when deciding a spouse maintenance application?

The court considers the following about both of you:

  • your age and health
  • your income, property, and financial resources
  • your ability to work
  • what is a suitable standard of living
  • if the marriage has affected your ability to earn an income
  • the needs of the applicant
  • the respondent’s capacity to pay
  • if there are children, who the children reside with (and receive primary care from)
  • if there are adult disabled children, who those adult children reside with (and receive primary care from)

Can I apply for spouse maintenance if I was in a de facto relationship?

To apply for spouse maintenance in a de facto relationship, you first need to establish that the de facto relationship exists. Generally, you can prove a de facto relationship existed by showing one or more of the following:

  • the period (or the total of the periods) of the de facto relationship is at least 2 years
  • there is a child of the de facto relationship
  • one of the partners made substantial financial or non-financial contributions to their
    property or as a homemaker or parent and serious injustice to that partner would
    result if the order was not made
  • the de facto relationship has been registered in a State or Territory with laws for the
    registration of relationships

A de facto relationship itself can be established by a combination of the following factors:

  • the duration of their relationship
  • the nature and extent of their common residence
  • whether a sexual relationship exists
  • the degree of financial dependence or interdependence, and any arrangements for
    financial support, between them
  • the ownership, use and acquisition of their property
  • their degree of mutual commitment to a shared life
  • whether the relationship has been registered, in a State or Territory with laws for the
    registration of relationships
  • the care and support of children, and
  • the reputation and public aspects of their relationship.

Do I still receive spousal maintenance if I start a new relationship?

You are not entitled to maintenance if you marry another person unless the court otherwise orders. If you start a new de facto relationship the court will take into account the financial relationship between you and your new de facto partner when considering whether you are able to support yourself adequately.

Is there a time limit for applications for spouse maintenance?

If you were married, applications for spouse maintenance must be made within 12 months of your divorce becoming final.

If you were in a de facto relationship, your applications for de facto partner maintenance must be made within 2 years of the breakdown of your de facto relationship.

If you do not apply within these time limits, you will need special permission of a court. This is not always granted.

How do I apply for spousal maintenance?

To apply for spouse maintenance, you will need to make an application to the Federal Circuit Court. Our lawyers can assist you with drafting such an application. In divorce and separation events, spouse maintenance is usually dealt with as part of a property settlement.

Before you file a spouse maintenance application, you will most likely need to have completed the early dispute resolution processes mandated by the court (those processes are not required in every case). You can read more about the early dispute resolution process on this Federal Family Circuit Court factsheet.

Resources

Check out some of our recent legal updates and property resources that you might find useful on this Family Law Resources link. Please remember that these updates and resources are general guidance only. If you need legal advice, you should contact us to discuss your matter as your personal circumstances may not suit the circumstances described in the updates and resources.

During family law legal matters, many issues come up that require the support of experienced social support works and other professionals. Here are some links to support resources that may help you (please ensure that you make yourself familiar with any confidentiality rules or seek advice from us).

Financial counselling & guidance links:

Relationship support:

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Our experienced lawyers know that you need:

  • someone who understands the emotions and attitudes of the people involved in your situation;
  • your concerns; especially around financial security, child custody, personal safety and so on;
  • someone who will provide upfront information about pricing and legal costs (and keep you updated as the matter progresses);
  • a lawyer who will provide practical, results-focused advice.

Our family lawyers know that family law clients are usually experiencing one of the most emotional times of their life – a fear of the unknown, concern over financial security, worry for future care of children, anxiety around personal safety and so on. Added to this, most people don’t know what their legal options are – especially when well-meaning friends or family offer advice that may or may not be correct. Our family lawyers see your whole matter and not just the court documents that need to be drafted.

Our lawyers cut through these issues and provide you with legal advice and a strategy based on decades of legal experience to give you the confidence to move forward with your life. 

At your first appointment:

  • you meet with an experienced lawyer;
  • you are advised in frank terms about legal costs and estimates to the end of your matter;
  • our lawyer listens to you and understands your matter;
  • our lawyer gives you some basic advice about how we start and handle your matter going forward.

Our family lawyers

Our experienced family lawyers are well trained. They keep up to date with daily changes in the law to provide you with up to date legal advice. Our team stays in contact with industry professionals (such as forensic accountants, investigators, valuers, real estate agents and so on) to ensure we have good working relationships with the right people when you need it.

Click on our staff profiles to learn more about each of our experienced family law team members:

Contact 

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