The Christmas holidays are usually a wonderful time of the year where families all get together and celebrate. However, for some separated families with children, these holidays bring about a period o...
Do I have to pay/can I receive spousal maintenance?
In Western Australia, spousal maintenance is gender neutral. You may receive spousal maintenance, if you are unable to support yourself adequately and your former spouse has the capacity to pay you. The same applies for your former spouse, which means you may have to pay spousal maintenance if the above applies. When deciding to make orders in relation to spousal maintenance, the family court will consider a number of different factors such as: the length of the relationship, if you or your former spouse have the care or control of a child of the relationship that is not yet 18 years old, you or your former spouse’s health, and you or your former spouse’s employability. You or your former spouse may seek spousal maintenance after separation, regardless of whether you were married or in a de facto relationship. The issue of spousal maintenance is case specific and we recommend that you discuss this issue with a family lawyer.
What are the two types of Spousal maintenance applications that The Family Court can deal with?
The first is Spousal maintenance which 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.
The second is De facto partner maintenance which 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.
What is Spousal Maintenance?
Under the Family Law Act 1975, 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.
What does a court consider when making a decision on Spousal Maintenance?
The court generally considers the needs of an applicant and the respondent's capacity to pay. The court considers the following about both parties:
your age and health
your income, property, and financial resources
your ability to work
what is a suitable standard of living, and
if the marriage has affected your ability to earn an income.
The court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.
Contact us to discuss the likely outcome of a Spousal Maintenance application.
Can someone still receive spousal maintenance if they start a new relationship?
Generally speaking, 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?
Yes, 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 the court which is not always granted. Speak to your lawyer if you require advice on an application for spousal maintenance made outside of these time limits.