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Separation from your spouse or partner whom you have been financially dependent upon can be daunting. It may be particularly worrying if you’ve been absent from the workforce for a while and are unsure whether you will be able to obtain employment. Separate to a property settlement, there are some circumstances where a person has the responsibility to financially assist their spouse or former de facto partner if that person cannot meet their own reasonable expenses following separation.
The legal basis for spouse maintenance is not gendered ie. to be eligible for spouse maintenance, it does not matter whether you are the husband, wife or part of a same-sex marriage or defacto relationship.
How is Spouse Maintenance Calculated?
There is no formula to calculate the amount of spouse maintenance payable. If spouse maintenance applies, the amount is different in every case. The amount of the financial assistance depends on the higher income earner’s “capacity” to pay, and on the “financial needs” of the lower/nil income earner.
To determine how much support the lower/nil income earner needs to survive (but not necessarily to remain in the lifestyle they may have become accustomed to), the Court assesses their “reasonable” daily living expenses and the extent of any “shortfall” they have in meeting these expenses. The Court also examines the higher income earners needs in determining how much spousal maintenance he or she can “afford” to pay, depending on the extent of any “surplus” income they have.
If court proceedings are on foot, this process is facilitated by each party completing a Financial Statement listing their income (if any) and weekly expenses. Often there can be disagreement between parties about what constitutes “reasonable” living expenses, which can be critical to the evaluation of whether spouse maintenance is payable. Ultimately, what is “reasonable” will be assessed by the individual Judge hearing the matter, which is a discretionary decision.
Spousal maintenance is not the same thing as child support. Child support is paid to meet the children’s needs. Child support payments are made for the purposes of covering expenses for school supplies, extracurricular fees, school tuition, the children’s health care, and so on. These expenses therefore do not form part of the “reasonable” daily living expenses of each party to be considered by the Court in a Spouse Maintenance application. A party can be eligible for both child support and spouse maintenance, if the evidence warrants it.
How long does Spouse Maintenance last and how is it paid?
The law places a positive obligation on the low income earner to mitigate their needs by pursuing gainful employment, as their circumstances allow. However, a parent with pre-school age children will generally not be expected to immediately seek full-time employment.
While it is preferred that spouse maintenance be met from party’s income, if the higher income earner does not have capacity to pay maintenance, in some rare cases orders can be sought requiring them to use property or other financial resources to pay maintenance (if there are suitable assets/financial resources available).
For final spouse maintenance Orders, the Court will have regard to the monetary value of the property that the party seeking maintenance has retained by way of property settlement and the extent to which that property will permit them to derive an income to support themselves.
If there is a spouse maintenance liability to be paid, these payments can be made in instalments at specified periods, or in one lump sum, depending on the unique circumstances.
How long a party will receive payments for also depends on the situation. In most cases, it is an “interim measure” meant to give the lower/nil income earner the opportunity to retrain or upskill, find employment and regain financial footing. In some cases however, these payments may go for an extended period.
We recommend you get proper legal advice about matters related to separation, divorce and spouse maintenance. To learn more about spousal maintenance and similar issues, contact our family lawyers Rockhampton today.
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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