Spousal maintenance is financial support paid by a party to their former spouse in circumstances where that party is unable to adequately support himself/herself.
A party to a former de facto relationship (including same sex relationships) would also be entitled to spousal maintenance in circumstances where the relationship lasted no less than two years or if the parties had a child.
When will spousal maintenance be payable?
Entitlement to spousal maintenance is not automatic in every case. The matters to consider in each case include:
- The claimant’s capacity to earn income
- age,
- ability to work
- dependant children from the relationship in his/her care
Ultimately, , the claimant must establish that there is a shortfall in his/her budget and the spousal maintenance payable will be that shortfall.
“A standard of living that in all the circumstances is reasonable”
The test applicable to ascertain need is not simply one of bare need. Instead there is a subjective element to consider in each case, namely, what was the standard of living to which the parties were accustomed to during the relationship.
Spousal maintenance for a definite period
The most common example of spousal maintenance orders made are for a limited period of time to allow a party to re-train or update his/her qualifications to be able to return to the work force. Normally, the payments will be for a period of one to two years.
“Lump sum” maintenance
Normally, after separation parties wish to end their financial relationship for once and for all and they formalise an agreement legally to cut all financial ties. Such a settlement will not necessarily end the obligation to pay spousal maintenance unless addressed property.
The notion that spousal maintenance continue to be paid for years after separation may run counter to the wish to terminate the parties’ financial ties.
As a result, parties frequently agree that a lump sum spousal maintenance sum be paid as part of a final property settlement, say a cash payment of an additional $41,600 being spousal maintenance equivalent to $4000 per week for 104 weeks.
What can elringtons do?
When managing your property settlement, spousal maintenance is an issue we consider on each case at elringtons.
For more information or to make an appointment please contact:
Carlos Turini at: cturini@elringtons.com.au
Phone the Family Law Team on (02) 6206 1300
