What is it, do I need it or do I have to pay it?
Following the end of your relationship you may find that with your household income no longer pooled, you find yourself with reduced income and an inability to support yourself. In those circumstances it may be that you require some short term financial support from your spouse to top up any income that you may be receiving or provide you with income if you have no source of income. The purpose of maintenance in this form is to allow the party receiving the maintenance to re-establish themselves, usually over a period for 2 to 3 years.
The law which relates to maintenance is found in section 72 of the Family Law Act along with reference to section 75(2) which is also considered in determining property settlement.
Importantly the requirements for spouse maintenance have two limbs, that is, first the spouse requiring support needs to establish they have a need for maintenance in circumstances where they are unable to support themselves adequately because they have the care of a child of the marriage, they are unable to work or for some other adequate reason. In undertaking the assessment reference is to be made to those factors in section 75(2). If, and only if, it can be established that a need exists, the second part of the limb looks at whether the person who is to pay the maintenance has the capacity to do so.
In summary, the matters to be taken into consideration when assessing spouse maintenance as set out in section 75(2) are:
- the age and state of health of the parties;
- any income, property and financial resources available to the parties;
- the physical and mental capacity of the parties to work in appropriate gainful employment;
- whether a party is looking after a child of the relationship;
- whether a course or additional training would allow a party to get back into the workforce;
- the duration of the marriage and whether the duration has impacted the earning capacity of a party;
- whether either party is living with someone else;
- any child support obligations.
Not all of the above matters will apply to every case. Which factors will apply will depend on the particular circumstances of the case. It is helpful to get legal advice before raising issues in court as some factors will be more relevant than others and it may be wise to exercise discretion.
To work out if you are likely to need financial assistance from your spouse following separation you should consider the following:
- review what regular income you have available from various sources e.g. work, Centrelink, other pensions;
- go through your budget of things that you will now be paying for on your own – you might be paying rent, or the whole mortgage, electricity, phone bills etc;
- note separately what expenses you have for the children, these will always be considered separately to any expenses that you have yourself;
- if your income is less than your assets, you might be entitled to some maintenance from your spouse, and should seek some legal advice about your particular circumstances.
Unless there is a significant disparity in the income of you and your spouse – that is that one earns significantly more than the other, or one spouse has been out of the work force looking after children or the home and the other working, maintenance arrangements are rare. You must have evidence that establishes your inability to support yourself adequately and you must consider making any request for maintenance, or application, early on after separation.