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The Court has the power to make a separate order for the maintenance of one of the parties (“spouse maintenance”).
The maintenance is either paid on a periodic basis or calculated as a lump sum to be incorporated in a property settlement.
In assessing whether to make a spouse maintenance order, the Court exercises its discretion in determining what the nil or lower income earner’s “financial need” is and what the higher income earner’s “financial capacity” is, to meet that “need”.
The law places a positive obligation on the lower income earner to mitigate their needs by pursuing gainful employment, as their circumstances allow. There are some limited circumstances (e.g. a primary caring parent with a pre-school age child) where a parent may not be expected to immediately seek full-time employment, particularly where child care costs mean it is not worthwhile.
The Court considers a number of factors when determining whether to make an order for spouse maintenance and each case is determined on its own facts.
It is preferred that spouse maintenance be met from the higher income earner’s income, however there are limited examples of where such orders have included the use of property or other financial resources to pay maintenance.
Spouse maintenance may be paid for a short “interim” period of time before final property settlement is negotiated. Final orders for indefinite spouse maintenance are uncommon.
For a final spouse maintenance order, the Court will have regard to the monetary value of the property that the party seeking maintenance has retained by way of final property settlement and the extent to which that property will permit them to derive an income to support themselves. The Family Law Act promotes the “clean break principle” so that, as far as practicable, final orders end the financial relationship between the parties and avoid any further proceedings. As a consequence, the Court’s preference is to finalise any spouse maintenance by way of a lump sum payment within the final property settlement, if possible.
An application for spouse maintenance must be filed in the Court within twelve (12) months after a Divorce Order takes effect, or within two years after separation for de facto couples.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
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