When you make the decision to separate from your partner, the last thing that you want to have to worry about is money. Unfortunately for many individuals the time surrounding separation can cause significant financial stress, particularly when one party to the relationship has traditionally taken on the role of parent and homemaker whilst the […]
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If you are concerned about how you will make ends meet following separation, it is crucial that you seek early advice in relation to whether or not you are likely to be successful in a Spousal Maintenance application.
What is Spousal Maintenance?
Following the breakdown of a relationship, in addition to rights to a Property Division, one party may be required to pay to the other party an amount for financial support. The payment is usually periodic (weekly or monthly) and can also be paid as a lump sum amount.
Spousal Maintenance is different to Child Support which is payable for the costs of care of the children.
How Can I Get Spousal Maintenance?
Unless you and your ex-partner can agree, you will need to make an application to the Court for a Spousal Maintenance Order. This can be a costly application to pursue so must be considered carefully.
Am I Entitled to Spousal Maintenance?
You may be entitled to Spousal Maintenance if you can prove that you do not have the capacity to earn enough income to support yourself properly. However, choosing not to work or to exercise a capacity to earn sufficient income will not entitle you to Spousal Maintenance.
Further, you will be unlikely to get an order for Spousal Maintenance if you have sufficient resources (other than income) to support yourself, such as access to a savings account or other assets.
The first step in establishing whether or not you may be entitled to Spousal Maintenance payments is to overcome the ‘threshold test’ which asks 2 questions:
- Are you unable to ‘adequately support’yourself on your income; and
- Is the other party ‘reasonably able’to pay you?
If it is determined that you are not able to ‘adequately’ support yourself and that the other party is ‘reasonably’ able to pay you, then the Court will give consideration to the extent to which your ex-partner should reasonably be expected to support you, i.e. how much should they pay you? This will ultimately involve an examination of your living expenses and those of your ex-partners.
How Much is the Amount of Spousal Maintenance?
In determining the amount of Spousal Maintenance to be paid, the Court will give consideration to a standard of living that is reasonable in all the circumstances. However, “reasonable” does not necessarily mean the standard of living enjoyed prior to the breakdown of the relationship.
If the Court determines that your ex-partner should pay you Spousal Maintenance, it will then give consideration to how much your ex-partner should reasonably have to pay you. This ultimately involves an examination of his/her income and expenses.
How Soon Can I Make a Spousal Maintenance Application?
Immediately after separation. Spousal Maintenance may be paid:
- On an urgent basis until resolution of the Property Division,
- As a lump sum at the time of the Property Division, and/or
- Periodically for a number of years following the Property Division (however, this is unusual).
There are important time limits to bear in mind when considering an application for Spousal Maintenance or Property Division. These are:
For a marriage – 1 year from the date a Divorce Order becomes final.
For a de facto relationship – 2 years from the date of separation.
There are limited exceptions to the time limits so speak to your Family Lawyer if you think you have run out of time.
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Our Family Lawyers will discuss our fees and charges with you and will provide an estimate of the fees and charges likely to arise in your matter.