What is Spousal Maintenance ?


What is Spousal Maintenance ?


Spousal maintenance is a form of financial support paid by one party of the marriage or de facto relationship to the other in circumstances where they are unable to adequately support themselves. It is important to note that spousal maintenance is different to child support, and that you may be entitled to spousal maintenance in addition to child support payments that you receive from your former spouse.
Spousal maintenance can be paid either periodically or as a once off lump sum payment.

How do I formalise a spousal maintenance agreement?
If you and your spouse can agree about the terms on which spousal maintenance will be paid you can formalise it by way of Consent Orders or a Binding Financial Agreement.

Consent Orders
The terms of your agreement can be submitted to The Family Court as Consent Orders. The benefit of submitting Consent Orders is that they will be an Order of the Court and they have the same legal force as if they had been made by a Family Court Judge.

Binding Financial Agreement (“BFA”)

A BFA is a contract between two spouses to a relationship that sets out the terms of your agreement. A BFA is similar to a Consent Order, except that they do not require the approval of the Court and they are not an Order of the Court.
The BFA may give more certainty to parties wanting to finalise spousal maintenance claims by ousting the jurisdiction of the Court to make maintenance orders. As a BFA is not an order of the Court it must strictly comply with the provisions of the Family Law Act 1975.

Spousal Maintenance

What do I do if we cannot agree on how much spousal maintenance should be paid?
You may make an application for spousal maintenance to the Family Court or the Federal Circuit Court. Under the Family Law Act 1975 a party has a responsibility to financially assist their spouse or former de facto partner to a similar standard to which the spouse or former de facto partner was accustomed to prior to the separation upon to a final property division.

Pursuant to section 75 of the Family Law Act the Court will consider the following when determining how much maintenance should be paid:

  • The age and health of each of the parties
  • The income, property, financial resources of each of the parties
  • The physical and mental capacity of each of the parties for employment and the extent to which spousal maintenance would increase a person’s capacity to support themselves
  • Whether either party has the care or control of a child of the marriage who is under the age of 18
  • The duration of the marriage and the extent to which it has affected the earning capacity of each spouse

Does Spousal Maintenance End?
A spousal maintenance order made by the Court will continue until the remarriage or death of a party. Spousal maintenance can also be modified where circumstances of either party have changed by making an application to the Court.
The cessation of spousal maintenance in accordance with the Family Law Act will not apply to spousal maintenance provisions in a BFA. It is imperative that when drafting a BFA in relation to spousal maintenance that you include clauses that allow for the termination and modification of spousal maintenance. If the BFA is silent to when spousal maintenance can be terminated or modified the agreement will remain binding on parties even if a party to the agreement dies or the spouse receiving spousal maintenance remarries.

How can Sage Solicitors Assist You?
Our experienced Family Law Solicitors, Charly Tannous and Gayanie Dharmaratne can assist you by:

  • Advising you on whether you are entitled to a spousal maintenance order
  • How to respond to a spousal maintenance claim
  • Advising you on whether to formalise your spousal maintenance by way of Consent Orders or BFA.
  • Drafting Consent Orders or BFA in accordance with the Family Law Act

If you are unsure of your entitlement to spousal maintenance or you require assistance with your rights or obligations upon separating from your partner, you should call Charly Tannous or Gayanie Dharmarante at Sage Solicitors to assist you.