“Maintenance” is a term given to the financial support payments that a party makes to their former partner in circumstances where the Court finds the payee partner is unable to adequately support themselves after separation or divorce.
- Spousal maintenance; and
- De facto partner maintenance
“Spousal maintenance” applies to parties who are/were formally married whereas “de facto partner maintenance” applies to parties to a de facto relationship that has broken down.
Why do parties have to pay maintenance?
The paying party will have a responsibility to financially assist their spouse or former de facto partner if that partner is unable to meet their sole reasonable expenses on their own from their personal income or assets.
There is an equal duty bestowed upon both parties to support and maintain each other as far as they can, regardless of whether they have separated or divorced. Accordingly, this duty continues even after separation and divorce.
Factors the Court considers
The Court needs to be satisfied of two (2) things when granting a maintenance application:
- A need for the receiving party to require financial support in order to live a reasonable life following separation or divorce; and
- Capacity of the paying party to make these financial support payments
Factors the Court will consider for both parties to determine if there is a need and capacity include:
- Age and health;
- Income, property, and financial resources;
- Ability to work;
- What is a suitable standard of living;
- If the marriage has affected your ability to earn an income; and
- If there are minor children or adult children with a disability, with whom the children live with
It is important to note that a party applying for maintenance will not be entitled to maintenance if they have commenced a new relationship, unless the Court otherwise orders. If an applying party has commenced a new relationship, the Court will consider the financial relationship between the applying party and their new partner and, accordingly, the applying party’s ability to support themselves through their new financial situation (if their financial situation has changed).
How much Maintenance does a party pay and when?
Maintenance payments will differ from party-to-party.
The Court looks at the paying party’s capacity to pay and the extent of the applying party’s need for financial support and considers an appropriate payment scheme for them to follow.
Maintenance can either be in the form of a one-off lump sum amount or regular payments over a certain period of time. For example, a party may be required to pay maintenance on a weekly basis for a period of 6 months, 1 year, 5 years or so forth.
For spousal maintenance, a party must make an application within twelve (12) months of the divorce becoming final.
For de facto partner maintenance, an application must be made within two (2) years of the de facto relationship breaking down.