When is Spousal Maintenance Payable?

31 August 2015

Spousal Maintenance (also called alimony in some countries) may be payable in Australia by one spouse (or de-facto partner) to the other under some circumstances pursuant to the provisions of the Family Law Act.  There is no automatic right to receive spousal maintenance.  An enforceable legal obligation to pay spousal maintenance can only arise if a Court Order is made.  A Court Order requiring you to pay spousal maintenance can be made under the Family Law Act (Australia) only if, firstly, you are reasonably able to pay and, secondly, if the other person is not able to adequately support himself/herself due to having the care of a child under 18, by reason of age or physical or mental incapacity for appropriate gainful employment, or any other relevant reason referred to in the legislation.

The Family Court in deciding whether spousal maintenance is payable, needs to weigh up the reasonable needs of the Applicant against the capacity of the Respondent to contribute to those needs.  For example, in many cases a wife could easily establish that she has a need for financial support because she is not employed and has the responsibility to care for infant children.  But, if her Husband is earning a low income and is now paying for his separate rental accommodation and child support, it is likely that the Family Court would determine that no spousal maintenance would be payable as he only earns enough money to cover his reasonable financial commitments.  One should note that Spousal Maintenance is quite separate to Child Support, which is usually separately assessed by the Child Support Agency and payable as a separate legal obligation.  Child Support is calculated using a government specified formula.

A Court can order maintenance to be paid as a regular weekly or monthly amount, or, even as a lump sum.  It is often the case that when lawyers are negotiating a final property settlement, spousal maintenance obligations will also be incorporated when structuring such a settlement.  It is common to make allowance for a lump sum maintenance component in a settlement for the following reasons:

  • The person paying the lump sum prefers to put an end to ongoing periodic payments of maintenance as it helps to finalise the financial relationship; and
  • The person receiving the benefit of the lump sum prefers to get money “ up front” to avoid any issues about non-payment in the future and, often to provide some financial capital security used for housing.

As a general overview, settlement of Spousal Maintenance issues requires the balancing of an Applicant’s needs against the Respondent’s capacity to pay.

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