Spousal Maintenance and Maintenance Agreements

‘Spousal Maintenance’ is an amount of money paid by one party to a marriage for the financial support of the other party or their children. It is not an automatic payment upon separation, and a separated woman or man who is not caring for children and who is able to work will probably not be awarded maintenance.

Child support is the same as maintenance and is the name for the maintenance paid to the person who looks after children by the party who does not. People who separate or have a child must approach the Child Support Agency for child support as the Family Court has no power to deal with the support of or maintenance for these children.

Agreements about a property settlement and maintenance can be made by the parties to the marriage and they can have the same effect as a property or maintenance order. They are known as ‘maintenance agreements’, and there are two types of agreements:

• agreements which only need to be registered in the Court (s86 agreements); and
• agreements which are in substitution for the rights of the parties under the Family Law Act and which must be approved by the Court (s87 agreements).

To obtain maintenance from the other party, a person will have to show that they are not able to support themselves properly because:

• they are caring for the children; or
• if they are not caring for the children, they are unable to obtain work, because of old age or sickness, or they cannot support themselves for some other reason.

In addition, the person applying for maintenance would have to show that the other party was reasonably able to pay them maintenance (s72, Family Law Act). In deciding whether to make a maintenance order, the Court is required to take into account the following factors, among others:

• the parties’ income and financial resources and their ability to obtain work;
• their financial needs and obligations;
• their age and health;
• whether either party is caring for a child under 18 years;
• a standard of living that is reasonable in all the circumstances once the parties have separated;
• the extent to which the party seeking maintenance has made a contribution to the resources or earning capacity of the other party;
• the length of the marriage and the extent to which it has affected earning capacity;
• the need to protect a woman who wishes to continue her role as a parent; and
• the financial circumstances of cohabitation if the party seeking maintenance is living with someone else (s75).

How much a person will be entitled to receive in maintenance from their spouse after applying these rules will depend upon the individual circumstances of the case. The Court is required to disregard the entitlement of a person to an income-tested social security payment when considering their application for maintenance. For example, if a woman’s only income after separation is parenting payment, and she asks the Court for maintenance, the Court will look at her needs and her husband’s ability to pay for those needs initially as if she had no income at all.

A spouse may apply to the Family Court for a maintenance order against the other spouse at any time during their marriage or in the separation period leading up to the divorce. An application may also be made during the 12 month period after the divorce (s44(3)). An application may generally not be made more than 12 months after the divorce. Applications after this time can only be granted by leave of the Court where the judge is of the opinion that hardship to the spouse and children would occur if leave were not granted. This restriction does not apply to an application for maintenance of children, which can be made at any time.

As with property disputes, spousal maintenance cases will be decided on their particular facts, and it is difficult to generalise about how much maintenance will be payable in ‘normal’ circumstances. The Court will consider the matters referred to in sections 72 and 75(2) of the Family Law Act bearing in mind the basic issues, namely the need of one party to receive maintenance and the capacity of the other party to provide it. The case studies above are presented in simplified form and indicate some of the factors which the Court will take into account. However, it should not be assumed that similar facts will necessarily result in similar decisions.