Spousal Maintenance

Often confused with child support, spousal maintenance is a separate legal right whereby a party to a de facto relationship or marriage that has broken down may be entitled to lump sum or periodic maintenance payments from the other party for his or her own necessary living expenses (as opposed to support for children) – but only if that party is in need and unable to support themselves, and only if the other party can actually afford to make such maintenance payments.

The amount of spousal maintenance paid in any given case is not formulaically calculated, and will depend on each couple’s particular circumstances.

Spousal maintenance is therefore a separate right to both child support and the right to have a property settlement, with future maintenance payments often being built into property settlement agreements as a capitalised amount. Maintenance can also be paid in the short-to-medium term pending final settlement or in addition to settlement.

It is worth noting that even if you have finalised your property settlement, you may still be at risk of a spousal maintenance claim. Similarly, you may be able to make a spousal maintenance claim depending on the circumstances. It is important to receive legal advice to know your exposure and/or rights in this respect.

As with property settlements however, there are also time limits that may preclude you from bringing an application for spousal maintenance. De facto couples must apply to the court for spousal maintenance within two years of separation, whereas married couples must do so within one year form the date of divorce. If no application is brought and the time limit elapses, you will be barred from applying to the court unless you can bring a successful application for leave to be granted for an extension of time.