Spousal Maintenance

If you are unable to support yourself, you may be entitled to financial support

What is Spousal Maintenance

A party has a responsibility to financially assist their former partner if they are unable to meet their own reasonable expenses from their personal income.

Spousal maintenance is financial support paid by a party to a former partner if they are unable to adequately support themselves.

The Law

Onus & Threshold Test

The onus (burden) of proof is on the party seeking spousal maintenance. He or she must satisfy the “threshold test” which is twofold:

  • Capacity: Is the payer “reasonably able” to pay and;
  • Need: Is the applicant “unable to support herself or himself adequately”.

Factors to Consider

In determining the threshold test and whether to order the payment of spousal maintenance, a court will consider the needs and capacity of both parties. The following factors are relevant:

  • The age and health of the parties
  • Their income, property and financial resources
  • Their physical and mental capacity to obtain employment
  • A suitable standard of living
  • If the relationship affected a party’s ability to earn an income
  • The care and needs of any dependent children
  • The party’s ability to undertake further education or training
  • The eligibility of a party to receive government benefits.

The court also has the discretion to consider other relevant facts or circumstances.

The pre-separation standard of living is not automatically awarded where the respondent’s means permit. The court’s discretion is exercised in accordance with the relevant section of the Family Law Act with “reasonableness in the circumstances” being the guiding principle.  

The main comparisons are:

  • The difference in the living standards between the parties now (after separation) and
  • The difference in living standard for each party before and after separation.
Time Limits

There are important time limits for applications for spousal maintenance. An application for spousal maintenance must be made within either:

  • 12 months of a divorce becoming final or a property order being made final; or
  • 2 years of the breakdown of a de facto relationship.

If you wish to apply outside of these limits, you will need to seek permission (leave) from the court.