Spousal maintenance is money one former partner pays to help the other meet their reasonable living costs after separation. It is separate from property settlement, which divides what you own and owe, and from child support, which is for the children. It applies to married couples and, in most cases, to de facto couples too (when it is often called de facto maintenance).
Maintenance is not automatic. You have to show that you need it and that your former partner can afford it.
Family Law Act 1975 (Cth), section 72(1)
“A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
having regard to any relevant matter referred to in subsection 75(2).”
For de facto couples, the same rule is in section 90SF(1).
The court asks two questions. Both must be answered “yes”:
1. Can you support yourself adequately? This is not just about whether you are struggling. The question is whether you can pay your reasonable expenses from your own income, earning capacity, savings and other money of your own. Common reasons people cannot are that they are caring for young children, their age or health stops them from working, or they left the workforce during the relationship and need time to get back into it.
2. Can your former partner reasonably afford to pay? The court looks at what your former partner earns and owns, and what they need to pay their own reasonable expenses and support anyone they must support, such as children. If there is nothing left over, maintenance will usually not be ordered.
If both questions are answered “yes”, the court decides how much should be paid and for how long. It considers matters such as:
De facto partners can usually claim maintenance under the same law as married couples. As a general rule, one of these must apply:
There are also rules about where you live. Western Australia has its own laws for de facto couples, so different rules apply there. If your relationship ended a long time ago, please ask us which law applies to you.
The court can order whatever it considers proper, for example:
Urgent maintenance: if you need money straight away to live on, the court can make an urgent order before the full case is decided. This is often called interim or urgent maintenance.
Married couples: you must apply within 12 months after your divorce takes effect.
De facto couples: you must apply within 2 years after the relationship ends.
After the deadline you need your former partner’s agreement or the court’s permission. The court will only give permission if refusing would cause hardship to you or a child, or if at the deadline you could not support yourself without a Centrelink pension, allowance or benefit. Applications to change or end an existing maintenance order are not caught by these time limits.
Yes. If circumstances change, for example the paying person loses their job or the person receiving maintenance starts earning more, either of you can ask the court to change, suspend or end the order. Maintenance also usually ends if the person receiving it remarries, unless the court orders otherwise.
Whether you need maintenance or have been asked to pay it, we can tell you whether a claim is likely to succeed, help you work out a fair amount, negotiate an agreement with your former partner and, if needed, apply to the court, including for urgent maintenance. Because of the strict time limits, it is best to get advice early. We act for clients in Brisbane and across Australia.
This page is general information only and is not legal advice. Please speak with a lawyer about your own situation.