It is a simple fact of life that two households are much more expensive to run than one. It is not uncommon for one party, usually that party who has been the primary homemaker and carer of the children, to struggle after separation.
In these circumstances, the low income party should consider obtaining spousal maintenance for their support from the other party. Spousal maintenance is different and distinct from child support.
Spousal maintenance can be paid in many forms including:
- Making mortgage payments for the home in which the other party lives;
- Paying various expenses of that party such as vehicle expenses, utility expenses and the like;
- Paying a sum of money on a periodic basis;
- Paying a “lump sum” amount of money.
In order to be eligible for spousal maintenance:-
- a spouse must be unable to support themselves adequately (this involves consideration of their income and their income earning capacity, and their reasonable and necessary expenses for their own support, and the support of other dependents); and
- the other spouse must have the capacity to assist them financially (this also involves consideration of the paying party’s income and their income earning capacity, and their reasonable and necessary expenses for their own support, and the support of other dependents).
When determining whether or not a spouse can support him or herself the Court must disregard any entitlement of the Applicant to an income-tested pension, allowance or benefit.
When considering whether spouse maintenance should be paid and the amount of spouse maintenance, the Court takes into account factors detailed in section 75(2) of the Family Law Act 1975 which include:
- the age and state of health of each of the parties;
- the income, property and financial resources of each of the parties;
- the physical and mental capacity of each of them for appropriate gainful employment;
- whether either party has the care or control of a child of the marriage under the age of 18 years;
- a standard of living that in all the circumstances is reasonable; and
- the extent to which the Applicant has contributed to the income, earning capacity, property and financial resources of the other party; and
- the duration of the marriage and the extent to which it has affected the earning capacity of the Applicant; and
- the need to protect a party who wishes to continue that party’s role as a parent; and
- if either party is cohabiting with another person, the financial circumstances relating to the cohabitation.
There are similar provisions applying to separated de facto couples, but in somewhat more limited circumstances.
It is often the case that spousal maintenance is not dealt with specifically in a family property case. This could be for a number of reasons – either the payer is unlikely to have capacity after paying a high level of support, or the property settlement itself includes a ‘spousal maintenance’ element, or the parties have compromised on these issues to narrow the scope of the dispute and to achieve a speedy and more cost-effective settlement.