When am I entitled to spousal maintenance?

Published 21 May 2018
Alex Bourne

When separating, it is always a daunting experience trying to work out your property, parenting and divorce. However, one thing that people fail to recognise is that they may be entitled to spousal maintenance (commonly known by the American term of, alimony). Spousal maintenance gets its definition from Section 72 of the Family Law Act

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

Essentially the above means that when both parties separate, and one party cannot adequately support him or herself, and the other party is capable of financially supporting the first party, then the first party has a right of spousal maintenance. There are numerous criteria that the court has to look at when determining the right to spousal maintenance such as:

a) If you are the primary carer of any child under 18

b) If you have any physical or mental incapacity that prevents you from gainful employment.

c) The income, property and financial resources of each party.

While the above list is not exhaustive, it does provide a brief outline of what the Family Law Court will take into consideration when hearing a Spousal Maintenance order.

Urgent spousal maintenance cases

In terms of urgency, under s77 of the Family Law Act, the court has the power to hear urgent spousal maintenance cases. In essence these are cases where one party is in immediate need of financial assistance, for such things as rent or day-to-day living expenses, and it would be appropriate for the other party to pay those expenses.

Urgent Spousal Maintenance cases are viewed as a "Stop go measure" and are for parties that are in desperate need of funds urgently. The court may not have all the evidence in front of them, therefore they have to consider what is reasonable in the circumstances. The leading case in this area is Grimshaw-Grieves & Grieves [2011] FMCAfam 125which clearly states:

Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.

It must be emphasised that urgent spousal maintenance cases are merely a "stop go measure" for immediate needs. The court will determine the question of spousal maintenance on a final basis when all financial evidence is before the court.

Spousal Maintenance cases

However, if you do not have an urgent spousal maintenance cases, then the Court can decide the question of spousal maintenance on an interim/ and or Final basis. As mentioned above there is two basic tests associated with spousal maintenance:

1. Can one party adequately provide for him/her self; and

2. Does the other party have the capacity to pay for the first party.

This test was further expanded in Saxena and Saxena [2006] FamCA 588; (2006) FLC 93-268, where the court explained that whether an order for spousal maintenance should be made requires a four step process to follow:

• Can the applicant support himself or herself adequately?

• If not, what are the applicant’s reasonable needs?

• What capacity does the respondent have to meet those needs?

• What order is reasonable having regard to s 75(2) of the Family Law Act

Examples of Spousal Maintenance case

While each client's case is based on the individual basis, the following cases offers some guidance:

Gadde & Gadde [2015] FamCA 617 – In this matter the wife was the primary carer for the children and could only work two days a week earning $372 per week. Further, the wife did to have access to any accommodation for herself or the children. The husband was working full time, earning a significant income while not paying child support. The husband had previously agreed to pay the wife spousal maintenance, however failed to continue this payment. The court ordered Urgent maintenance orders for the wife, in the form of a lump sum which equated to 6 months' worth of payments.

Rainier & Rainier [2011] FMCAfam 119 – In this matter, both parties had a shared care arrangement with the 16-month year old child. The child was spending shorter periods of time with the Father. The wife was seeking spousal maintenance, but the husband argued that the wife had capacity to work. The court ruled that the wife should not be penalised by choosing to be available to care for the child full time at such a young age. The court ordered a modest amount of maintenance to the wife on an interim basis pending final orders.

Bane & Bayley [2013] FCCA 1581– In this matter, it was a short marriage of only 6 years. There were no children from the relationship. The wife was earning a modest income of approximately $400 a week, while the husband had a weekly income of $4,549.00. The court ordered that on an interim basis, that the husband pay the wife spousal maintenance of $250, to supplement the wife's income to ensure that she earnt minimum wage.

As you can see, there are lots of scenarios in which you can be entitled to spousal maintenance. While each matter is determined on their own merits, it is imperative that you speak to a Solicitor to get what you are entitled to.

For expert Family law advice, contact Maclarens Lawyers on 96823777.