Spousal maintenance – Financial Support after separation
Questions that are frequently asked by a party seeking legal advice following a separation include:
How am I going to support myself now? Do I have any rights? How can I be sure that I will have sufficient income to manage if my partner refuses to support me as they did during the relationship?
This is of particular concern when one party is the primary income earner and the other is without sufficient independent income to support themself either because they are caring for young children, they have physical or mental incapacities which prevent them from working or they have been out of the workforce for a number of years and no longer have an earning capacity.
Spousal Maintenance – what is it?
Spousal maintenance is financial support paid by a person to their former partner or spouse after the breakdown of their relationship. It is usually paid on a short-term basis until the parties have finalised the adjustment of their property however it sometimes continues into the future depending upon the particular circumstances of each case.
Spousal maintenance applies to both marriages and de facto relationships.
How is spousal maintenance calculated?
There is no defined formula to determine how much spousal maintenance one party must pay the other. A wide range of factors are taken into account, including:
- Age and health of both parties
- Income and assets of both parties
- Physical and mental capacities of either party
- Responsibilities of either party to support another party
- A standard of living that is reasonable in all circumstances
Essentially the amount of spousal maintenance is determined by the capacity of the greater income earner to support their former partner or spouse and the need for financial support of that other party.
The amount may either be negotiated between the parties directly or with the assistance of their lawyers or if no agreement can be reached, the party requiring spousal maintenance can make an application to the court seeking a determination for that party.
Once the court is aware of the circumstances of the parties as outlined above including importantly their respective financial positions, a Judge will make a decision which is binding on both parties.
Another more practical option to consider is for the parties to leave in place the financial arrangements that existed during their marriage or relationship until an overall property settlement is achieved in which the disadvantaged party will have their entitlement to spousal maintenance taken into account in the overall settlement.
When must I apply for spousal maintenance?
Usually an application for spousal maintenance would be made shortly following a separation if the primary income earner has withdrawn financial support. It is also usually the case that an order for spousal maintenance lasts up until the parties have negotiated a division of their matrimonial property.
There are however some time limits for making an application for spousal maintenance as follows:
- for married couples, the application must be made within 12 months of the date of divorce; and
- for couples in a de facto relationship, the application must be made within 2 years of the end of the relationship.
If the application has exceeded the time frame, special permission must be sought from the Court.
How many years do I have to be in a relationship to get spousal maintenance?
As long as you were in a marriage or de facto relationship and are entitled to spousal maintenance based on the particular circumstances of your case, the duration of the relationship does not matter.
Am I still entitled to spousal maintenance if I remarry?
You are not entitled to spousal maintenance if you remarry, unless the Court allows it. The Court considers the financial support from your new spouse in determining whether you can adequately support yourself.
Interestingly, if you enter into a de facto relationship but do not remarry, you may still be entitled to spousal maintenance depending on the circumstances.
Can I avoid paying spousal maintenance?
If the Court orders you to pay spousal maintenance, you cannot avoid doing so. However, as noted above, the order is typically only for a limited period of time until the other party is restored to a financially independent state, usually when a division of joint property is achieved.
During the period of the order, you may apply to either discharge or vary the order if your circumstances have changed since the order was made.
- If you have gone bankrupt
- If the other party has re-partnered with a person who can financially support them
- If material facts were withheld from the Court when the order was made, or evidence previously given to the Court were false
Alternatively, if a party to the spousal maintenance order dies, the order ends.
Should you require advice with respect to any aspect of spousal maintenance please do not hesitate to contact Carew Counsel Solicitors for specialised advice.