Spousal maintenance is one of the most misunderstood aspects of family law in Australia. Many people believe it is automatically payable after a marriage or de facto relationship ends. It is not — specific conditions must be met, and the circumstances in which it is payable are more limited than many expect.
What Is Spousal Maintenance?
Spousal maintenance (also called de facto maintenance for de facto couples) is financial support paid by one partner to the other after separation. It is separate from child support, which relates specifically to the financial needs of children.
When Is Spousal Maintenance Payable?
Spousal maintenance is payable where one party cannot adequately support themselves and the other party has the capacity to pay. The circumstances in which a party may not be able to support themselves include:
- Having the care of a child of the relationship who is under school age or has a disability
- Having a physical or mental disability that affects their ability to work
- Having spent significant time out of the workforce to care for children or the family, with the result that their earning capacity has been diminished
- Any other adequate reason — courts have a broad discretion
Crucially, maintenance is not payable simply because one party earned more during the relationship. The claimant must show they genuinely cannot adequately support themselves.
How Long Is Maintenance Payable?
Spousal maintenance is generally not intended to be permanent. Courts consider it as a transitional measure to allow the lower-earning party to become self-sufficient. Maintenance may be paid for a defined period (for example, while retraining) or until the recipient remarries or enters a new de facto relationship, at which point it generally ceases.
Urgent Maintenance
In some cases, a party may apply for urgent maintenance pending a full hearing — for example, where they have been left without access to funds immediately after separation. Courts can make interim maintenance orders relatively quickly in genuine cases of need.
Maintenance Agreements
Parties can agree on maintenance by consent, which can be formalised through consent orders or a Binding Financial Agreement. This provides certainty for both parties and avoids the cost and uncertainty of contested proceedings.
Time Limits
For married couples, maintenance applications must be made within 12 months of the divorce becoming final. For de facto couples, applications must be made within 2 years of the relationship ending. After these periods, the court's permission is required.
Tax Treatment
Spousal maintenance is generally assessable income for the recipient and deductible for the payer, unlike child support which has different tax treatment. Speak to your accountant about the tax implications in your specific circumstances.
At James Papas Solicitors, Shanthi Anandarajah advises on all aspects of spousal and de facto maintenance in English and Tamil. Your first consultation is free. Call (02) 9633 3122.
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