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In some circumstances of separation and divorce, spousal maintenance is a consideration. At Carew Counsel, we have a team of highly trained family law solicitors here to advocate for your case.
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. When the Court considers an application for spousal maintenance the Court must look at the needs of the person who is seeking the maintenance be paid; and the capacity of the other person to pay. In deciding whether a spouse is entitled to maintenance (and in assessing how maintenance is to be paid) the Court will consider a myriad of issues. These include the age and health of the parties, the arrangements for the care of children, as well as the physical and mental capabilities of the parties for employment.
It is important to obtain independent legal advice in relation to your rights and obligations regarding spousal maintenance.
In the event that a party is in receipt of a pension, the Court will effectively treat that party as having no income. Spousal maintenance payments are separate to Child Support payments.
An application for spousal maintenance may be made immediately following separation and before an order for divorce. Once a divorce order has been made final, there is a twelve month time limit on applying for spousal maintenance. If the application is not lodged within that time frame, the applicant must prove to the Court that there were special circumstances that permitted the application to be made out of time. In the case of a de facto relationship, the time limit for making an application for spousal maintenance is two years from the date of separation.
Spousal maintenance may be paid on a periodic basis for a specific period of time, such as until the children are old enough to attend school and the parent who is seeking the maintenance can resume paid employment, or to provide the person who is in need of spousal maintenance sufficient time to study and re-train to enable them to obtain employment. Often parties will finalise the issue of spousal maintenance with one party paying a lump sum to the other, rather than entering into payments on a weekly or other periodic basis.
Spousal maintenance ceases on the death of the receiving party, remarriage or upon the death of the person making the maintenance payments, depending on the particular circumstances. If there is a change in the financial circumstances of either party then the order may be varied.
Spousal maintenance is something that varies from case to case. It is important to obtain independent legal advice in relation to your rights and obligations regarding spousal maintenance.