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Family law cases are always difficult. They are usually emotionally tense and mentally exhausting, often causing many of our clients to become frustrated and disenchanted with the process. In divorce and separation cases, many sensitive topics have to be discussed, including spousal maintenance. Spousal maintenance is not just sensitive, it’s complex and is often one of the most dreaded topics by either party, however, it must be dealt with.
What is spousal maintenance?
Spousal maintenance can be paid to a spouse (spousal maintenance) or a de facto partner (de facto maintenance).
In either case, it is considered the financial support paid by a party to a marriage or de facto relationship to their former husband, wife or partner in circumstances where they are unable to adequately support themselves.
Spousal maintenance is referenced in the Family Law Act 1975. It mentions that the person has a responsibility to financially assist their spouse or former de facto partner if they cannot meet their reasonable expenses from their personal income or assets.
If the need for financial assistance exists, then both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce as the extent of the support depends on what the other party can afford to pay and for how long.
Who determines spousal maintenance and how is it calculated?
Spousal maintenance is determined by a few different methods:
Negotiation
Negotiations can either happen with your former spouse or de facto partner directly or through your solicitors. If during this method, you find that you are having trouble negotiating with your former partner, then we highly recommend that you contact Prominent Lawyers.
Mediation
This method involves face-to-face discussions between you and your former spouse or de facto partner as well as your respective family lawyers. A jointly appointed mediator is present; their role is to assist the parties in finding commonalities so that a lasting agreement can be formed.
Collaborative process
The collaborative process requires that each party commits to not commence or threaten to commence Court proceedings. Each party and their respective solicitors will attend face-to-face meetings to reach an agreement, allowing you to escape the stress and expense of a court trial.
Arbitration
This is a confidential dispute resolution process that uses a neutral third party, the Arbitrator. The Arbitrator meets with you, your former spouse or de facto partner and family lawyers and considers all arguments and evidence. They will then make a decision that will be considered legally binding.
Trial – the Family Court of Australia or the Federal Circuit Court.
This method is used when all of the above methods are either not an option, or have been exhausted. The courts take into consideration several factors, including the capacity of the respondent to pay as well as the needs of the applicant.
Here are a few of the major factors that the courts will consider for both the applicant and the respondent:
- your age and health,
- your income, property, and financial resources,
- your ability to work,
- with whom children under the age of 18 years old or children with disabilities live,
- what is a suitable standard of living, and
- if the marriage has affected your ability to earn an income.
Interested in applying for spousal maintenance?
If you need spousal maintenance, then you will have to apply for it within a stipulated time frame. For married persons, you need to apply for spousal maintenance within 12 months of your divorce becoming final. For persons in a de facto relationship, your application must be made within 2 years of the breakdown of your relationship.
As soon as you have realised that you would like to apply for spousal maintenance, we highly recommend that you contact a member of our team. The breakdown of marriages and relationships creates tension and resentment between parties, you should hire a professional who can objectively handle your case.
At Prominent Lawyers, we will gladly be by the side of our clients at every step of their spousal maintenance process. Our team understands how important this support is for a client’s case and will work our hardest to ensure that you get what is fair to you.
We know that family law cases and spousal maintenance proceedings are emotionally and mentally exhausting. To protect yourself and to ensure that you secure the best representation possible in this difficult time, contact Prominent Lawyers.
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*The contents in this article are solely intended to provide general information in summary and do not constitute legal advice. We recommend seeking the assistance of a legal professional to discuss any matters at hand.
