In the complex landscape of family law, one of the biggest concerns that people have during divorce proceedings is spousal maintenance whether it be seeking it or having to pay it. Spousal maintenance is financial support provided by one spouse to the other following the breakdown of a marriage or de facto relationship. In this article, we will explore what spousal maintenance entails, when it may be applicable, and the key factors the Courts consider when determining if you are eligible to pay spousal maintenance or whether you will be required to pay spousal maintenance.
You should always get advice from the best family lawyers. Barker Evans provides expert family law advice on spousal maintenance, and we are located in the heart of Sydney CBD.
What is Spousal Maintenance?
Spousal maintenance is a legal obligation for one spouse to provide financial support to the other after separation or divorce. The primary aim is to ensure that both parties can maintain a reasonable standard of living post-separation, taking into account factors such as earning capacity, age, health, and childcare responsibilities.
Spousal maintenance in Australia is applicable under the Family Law Act 1975 (Cth) when one party is unable to adequately support themselves and the other party has the capacity to provide financial support. This is outlined in Section 72 of the Act for married or previously married couples, and Section 90SF(1) in relation to de facto couples.
Factors Considered by the Court:
When determining spousal maintenance, the court takes into account a range of factors to ensure a just and equitable outcome. The key considerations are set out in Section 75(2) for married couples or Section 90SF(3) for de facto relationships, some of the key considerations include:
- Financial Resources and Earning Capacity:
- The court assesses the financial resources and earning capacity of both spouses. This includes income, property, and any financial resources likely to be available in thfuture. This factor further extends to the persons physical and mental capacity for appropriate gainful employment.
- Standard of Living:
- The court considers the standard of living enjoyed by the parties during the relationship and seeks to maintain a similar standard post-separation.
- Age and Health:
- The age and health of each spouse are crucial factors. The court will recognises that age and health conditions may affect a person’s ability to earn an income.
- Childcare Responsibilities:
- If a spouse has primary responsibility for the care of children under the age of 18, the court considers the impact of this responsibility on their ability to work and support themselves.
- The party that seeks to continue their role as a parent will also be afforded protection.
- Commitments to other children or persons:
- If a spouse has a duty to maintain another child from another relationship, or to maintain a person such as someone with a disability, these commitments will be considered.
- Current living arrangements:
- If a spouse is cohabiting with another person, the financial circumstances of that living arrangements.
- Duration of the Marriage:
- Longer marriages may lead to a higher likelihood of spousal maintenance being granted and consideration will be given as to extent which the duration as affected a spouse’s earning capacity.
- Contributions during the relationship:
- To the extent that a party had made contributions to the other person’s income, earning capacity, property and financial resources of the other party.
- Training or education:
- If the spousal maintenance may enable a party to undertake a course of education or training to increase their earning capacity or obtain an adequate income.
- Child Support:
- Any child support under the Child Support (Assessment) Act 1989 that has or may be liable to provide for a child of the relationship.
This list is certainly not exhaustive of all the considerations that a Court may have regard to when making an order for spousal maintenance. The Court has discretion under the Act to further consider any fact or circumstance which in the Court’s opinion, the justice of the case requires to be taken into account. It is therefore important that you seek advice from an experienced family lawyer who can assist you in identifying all of the relevant considerations regardless of whether you are seeking receipt of spousal maintenance, or maintenance is being sought from you.
Conclusion
Spousal maintenance is a nuanced aspect of family law designed to address financial disparities and ensure both parties can move forward with a reasonable standard of living post-separation. If you find yourself in a situation where spousal maintenance may be applicable, seeking professional legal advice is essential. Understanding your rights and obligations is crucial for navigating the complexities of family law and achieving a fair resolution for all parties involved.
If you want advice from a leading family lawyer, please do not hesitate to contact Barker Evans on (02) 8379 1892 or info@barkerevans.com.au.