Spousal Maintenance
Separation often results in a significant change in financial circumstances. In some cases, one party may not be able to adequately support themselves following the breakdown of a relationship.
Spousal maintenance is a form of financial support paid by one party to the other in these situations.
At Baird & McGregor Lawyers, we provide clear advice about your rights and obligations, and assist clients to navigate claims for spousal maintenance in a practical and informed way.
What is Spousal Maintenance?
Spousal maintenance is financial support paid by one party to a marriage or de facto relationship to the other where:
one party is unable to adequately support themselves; and
the other party has the capacity to provide financial assistance.
It is not automatic and is separate from child support and property settlement.
The threshold test - need and capacity
The Court applies a two‑stage test:
1. The applicant must show need
Under s 72, a person must show they are unable to support themselves adequately due to:
care of a child of the relationship under 18
age or physical/mental incapacity
any other adequate reason
2. The other party must have capacity to pay
Even if need is established, the Court will only make an order if the other party can reasonably afford to pay after meeting their own needs.
Spousal maintenance reflects a residual obligation - it operates only where there is both a shortfall (need) and a surplus (capacity).
The s 75(2) factors
Once threshold is met, the Court considers a broad range of discretionary factors:
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income, property and financial resources
earning capacity
financial commitments and liabilities
eligibility for government benefits
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age and health
mental or physical capacity to work
standard of living that is reasonable
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care of children under 18
housing needs of children
impact of parenting responsibilities
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duration of the relationship
impact of the relationship on earning capacity
loss of career opportunities
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family violence (including economic impact)
financial support from a new partner
any other relevant circumstance
Types of Spousal Maintenance
Spousal maintenance is not a single, fixed type of payment. Instead, the form and duration of maintenance will depend on the financial circumstances of the parties and the nature of the need identified by the Court.
Interim (urgent) maintenance is typically ordered in the early stages of separation or Court proceedings, where one party has an immediate and pressing financial need. These orders are designed to provide short‑term support to cover essential living expenses while broader financial issues, such as property settlement or final maintenance arrangements, are determined. Interim maintenance is usually limited in duration and focuses on ensuring that a party can meet day‑to‑day needs without undue hardship during the transition period.
Rehabilitative maintenance is the most common form of spousal maintenance. It is designed to support a party in becoming financially independent over time. This type of maintenance often arises where one party has been out of the workforce during the relationship, for example due to caring responsibilities. The purpose of rehabilitative maintenance is to provide financial support while that party retrains, secures employment, or re‑establishes themselves financially. As a result, it is usually time‑limited and linked to a realistic pathway toward independence.
Final or longer‑term maintenance is less common and arises in more specific circumstances, particularly where a party’s ability to achieve financial independence is significantly limited. This may include situations involving age, long‑term health issues, or prolonged financial dependency resulting from the relationship. In such cases, the Court may determine that ongoing financial support is appropriate, although these orders are considered carefully and are still subject to ongoing review if circumstances change.
In some matters, lump sum maintenance may be considered as an alternative to ongoing payments. Rather than periodic financial support, maintenance obligations can be met through a single payment or by way of an adjustment to the property settlement between the parties. This can be particularly useful in achieving finality.
When does spousal maintenance end?
Spousal maintenance is not intended to operate indefinitely and will usually come to an end once it is no longer appropriate in the circumstances. The duration of maintenance depends on the purpose for which it was ordered, and the Court will generally aim to ensure that parties move toward financial independence where possible.
Under the Family Law Act 1975 (Cth), maintenance obligations will typically end in a number of circumstances, either automatically or by further order of the Court.
The most common situation where maintenance ends automatically is where the receiving party remarries. In most cases, remarriage brings an end to any existing spousal maintenance entitlement, unless the Court orders otherwise. The rationale is that the financial responsibility for support is expected to shift within the new relationship.
If the receiving party enters into a new de facto relationship, maintenance does not automatically end, but the Court will take that relationship into account when considering whether that party can support themselves adequately. In practice, if the new partner is contributing to living expenses, maintenance may be reduced or brought to an end.
Spousal maintenance may also end where the recipient becomes financially independent. This commonly arises where a party returns to work, completes retraining, or otherwise becomes able to meet their own reasonable living expenses. In these cases, maintenance will often have been structured as a time‑limited or rehabilitative order, with an expectation that support will cease once independence is achieved.
Maintenance can also cease where there has been a significant change in circumstances, such as:
a substantial increase or decrease in either party’s income;
changes in parenting arrangements (for example, children becoming older or independent);
changes in health affecting earning capacity; or
financial changes affecting either party’s ability to pay or need for support
In these situations, either party can apply to the Court to vary or terminate an existing maintenance order.
Time limits for spousal maintenance
Strict time limits apply to applications for spousal maintenance, and these are a critical risk area for clients.
For married couples, an application for spousal maintenance must be commenced:
within 12 months of the divorce becoming final
For de facto relationships, the time limit is:
within 2 years of separation
If an application is not filed within these timeframes, a party must seek the leave (permission) of the Court to proceed out of time.
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