Spouse Maintenance

In order for a spouse maintenance claim to be successful you need to be show that the one party does not have sufficient funds to meet their living expenses while the other party has a surplus of funds. It is based on one parties need to be maintained and the other parties ability to maintain them.

Application for spouse maintenance can be made at any time up until 12 months after a divorce becomes final.

In deciding whether a spouse is entitled to maintenance (and assessing how much maintenance is to be paid), a Court will take into account factors relevant to the particular case which, amongst other things includes:

• Age and state of health of parties
• If they have the care of a child of the marriage under 18
• The income, property and financial resources of each party and their physical and mental capacity for employment
• The financial means and obligations of each of them
• Whether they are supporting another person
• The standard of living which is reasonable in the circumstances
• Whether payment of maintenance would enable the recipient to undertake a course or retraining and enable them to earn an income in the future etc.

Sometimes all that is needed is a “stop gap” arrangement until the property is divided. In considering maintenance the Court is not permitted to take into account any pension received from Centrelink. So a spouse whose only source of income is social security benefits will be treated as having no income at all.

Spouse maintenance may be ordered for a specified period of time, such as until the children are old enough to attend school and the parent can get a job, or for sufficient time to enable the parent to study, update their skills and obtain employment. Often the parties will resolve the issue of spouse maintenance by one paying to the other a lump sum rather than making payments weekly or monthly. A lump sum payment may be preferable for a party as it finalises financial matters and avoids waiting for the payments.

Once a divorce has been obtained an application for spouse maintenance must be made within twelve (12) months of the date of the divorce becoming final. If the application for spouse maintenance is not lodged within that time a person must prove to a Court that there are special circumstances which allow the application to be made late.


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