Spousal maintenance

Most people are familiar with the idea of child support — the assessment and payment of an amount by one parent to the other as a contribution to the payment of expenses for the children.

A less well understood system for payment between separated people is "spousal maintenance".

As the name suggests, spousal maintenance is not regarding payments for children but rather a contribution to the expenses of one person of the relationship to the other.

The basis of spousal maintenance comes from the concept that the duty in marriage (or defacto relationship) to maintain your spouse does not end on separation. It is payable when one party cannot support themselves after the relationship has ended.

Unlike child support, spousal maintenance isn't administered by a government agency. Rather it is a legal right that can be determined and enforced by a court if parties can't agree.

For a person to be entitled to spousal maintenance 2 key elements must be met:

1. The person claiming spousal maintenance must have a need to receive such maintenance to support themselves
2. The payer must have the capacity to make such payments — that is their income level must enable them to pay such maintenance after they have met their own basic needs and paid child support

You have probably twigged that the combination of those factors means spousal maintenance only happens in a minority of matters. While many people could easily establish they can't support themselves, it is not common that the other person has the capacity to pay.

Unlike child support, spousal maintenance isn't worked out by the application of a formula, instead it is more subjective looking at the need and the capacity to pay and ordering a specific amount.

The payment of spousal maintenance can happen in a variety of ways. There can be urgent spousal maintenance — often useful when separation means a party without their own income is cut off from finances. Interim spousal maintenance will occur while family law proceedings are happening and can be an ongoing amount paid weekly, fortnightly or monthly or a lump sum.

Spousal maintenance can continue to be paid for a specified time after people reach a property settlement — say for a year or two while a person retrains. More commonly spousal maintenance is finalised at the time of a final property settlement with the payment of a lump sum or included in the assets a party keeps.

If separation leaves you without the ability to support yourself you should seek advice from our Family Law team about whether you can obtain spousal maintenance — speak to one of our family lawyers by calling 03 5445 1000.