May 16, 2021

Island Beverage Cb

Delighting law fanatics

Spousal Maintenance: What You Need To Know

3 min read
When a relationship has been broken, many people are often left wondering about the processes...

When a relationship has been broken, many people are often left wondering about the processes involved in financially supporting a partner. 

 

As part of the Family Law Act 1975 in Australia, if a person cannot meet their individual reasonable expenses from personal income and assets, the partner is obliged to provide financial support to their spouse or former de facto partner. This responsibility can often extend beyond the length of the relationship and continue after a separation. 

 

We will be taking you through spousal maintenance and how you can make an application for it in Western Australia. 

What is spousal maintenance?

Spousal maintenance is defined as an agreement made between former partners, where one party will continue to provide financial support to their former spouse in situations where they are unable to support themselves. Sometimes, you may hear the term “alimony”,  the equivalent in the United States,  when discussing spousal maintenance.. 

 

Take note: Spousal maintenance is different from child support, the financial support made by a parent for the financial benefit of a child.

 

When can I apply for spousal maintenance? 

 

You’ll be able to make an application as soon as you have separated from your partner or spouse. If you are married, you won’t need to wait until you are officially divorced to apply. However, applications for spousal maintenance need to be made within 12 months of your divorce being finalised. If you were in a de facto relationship, the application for a de facto partner maintenance needs to be made within two years of the end of the relationship. 

 

Once you’ve passed these time limits, you’ll need to be granted special permission from a court. These are not always granted, so it’s strongly recommended that you apply within the given timeframe. 

How do I apply for spousal maintenance? 

If you think you are eligible for spousal maintenance, you can lodge an application with the Family Court of Western Australia. You will need to submit a number of important documents including a Form 1 Initiating Applications which contains support affidavit evidence, as well as a Form 13 Financial Statement to outline your financial circumstances. You are able to lodge this application on its own or in combination with a final financial property settlement. 

Do I have to pay the spousal maintenance? 

This is a tricky question to answer as it depends on the financial circumstances of each relationship. You are only legally required to pay the support to your partner to the extent that you can reasonably do so. This is only necessary if the other partner is not able to support themselves financially appropriately. 

 

This payment can also be paid in one lump sum at the end of your property settlement, or it can also be paid as part of an ongoing basis as you are finalising your divorce proceedings. Depending on the case, this payment can be ordered for a set period of time, or it may be left as being indefinite. 

What does the Family Court Consider?

The Family Court of Western Australia looks at each spousal maintenance application using a threshold test. Primarily, the court will be analysing your income and other financial resources that you have access to. Your age, health and reasonable standard of living will also be assessed within the context of the specific family.  

 

They’ll also consider whether the marriage affected your capacity to earn a living income, and your overall capacity to work. If there are children involved, they will examine which partner in the relationship has the primary care of a child from the relationship who is under 18. 

When should I speak to a family lawyer?

If you believe that you’re going to need spousal maintenance or are looking to make an application, you should always discuss your situation with experienced family lawyers. Their expertise can help to guide you in the right direction and help to build your case for making a spousal maintenance application. Likewise, you can also ask them for legal advice on how to defend an application. 

 

Speaking with a family lawyer is the most efficient way to deal with your spousal maintenance needs, ensuring it is done in a professional and legal manner.

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