What Is The Spousal Maintenance Law in Australia?

May 7, 2023


One party to a marriage (also read into this de facto) is liable to maintain the other party to the marriage if the other party is unable to support themself adequately and to the extent the first party is reasonably able to do so.

Before making any spousal maintenance orders a Court must consider what property orders it will make, as the distribution of matrimonial assets may result in both parties being able to sufficiently meet their own reasonable expenses.  The main thrust of such a consideration is the `clean break’ principle, as the Courts prefer to make decisions bringing finality to proceedings.  In other words, an order, imposing an obligation on one of the parties to make periodical and ongoing financial commitments, even if it is only for the short term, to another party is generally avoided as the Courts do not like “supervising” a periodical payment order, preferring instead to issue a final order, making a suitable adjustment in favour of the financially disadvantaged party.

The Court has established what is essentially a four step process when considering an application for spousal maintenance:-
  1. To what extent can the applicant support themselves?
  2. What are the applicant’s reasonable needs?
  3. What capacity does the respondent have to comply with and Order issued by the Court?
  4. If steps 1 to 3 favour the applicant, what order is reasonable having regard to the care the parties provide for any children of the relationship, age, health, income, property and financial resources of the parties?

Before a Court will examine the quantity of spousal maintenance required, an applicant must demonstrate that they are unable to support themself adequately from their own financial resources, by reason of having care of a minor child/ren of the relationship, physical, or mental incapacity, or for any other adequate reason.

If a person chooses not to utilise an income generating skill, then they will not be able to demonstrate to the Court that they cannot support themselves and the Court will dismiss their application.  An applicant cannot be successful where they have not made a genuine effort to gain employment, but of course, there may be circumstances which prevent the applicant from engaging in gainful employment.  For example, one party may need a car to travel to employment at various sites but may not have the funds to buy a car.  The court will examine the totality of the circumstances in determining whether an applicant has established that they are unable to support themselves adequately.

Employment qualifications do not necessarily equate to the capacity to adequately support yourself, what must also be taken into consideration is the length of time that a person has been absent from the workforce and whether those absences are as a result of the party’s commitment to the children and the home.

What is adequate depends on the circumstances of the case, adequate is more than bare necessity, or a standard of living that is reasonable in the circumstances.  Adequate is not being forced to continue living with your parents rent free forsaking your independence, when you have already been living independently for many years, but having said that, there is no requirement that the applicant’s standard of living pre-separation be maintained.

An applicant does not have to demonstrate that they have spent all their money to make a successful claim for maintenance and by extension claims are not limited to “current” expenses, as an applicant may not have the financial means to meet the ongoing commitments necessary to support themselves.  Payments associated with rent and vehicle ownership (as outlined above), are ordinarily considered reasonable expenses, but may not form part of your current expenses because you simply cannot afford it.

In determining whether a spouse can adequately support themself the court will consider the age, health, income, property and financial resources of the parties, who has care or control of the children of the marriage, and other factors.

The extent to which one party is reasonably able to support the other also depends on the circumstances of the case and is relative to the overall wealth of the parties.  The main argument surrounding capacity is whether it should be judged on your existing income or earning potential.  Generally, the courts adopt the mentality that your capacity to pay spousal maintenance is judged on your existing income, except where deliberate attempts have been made to minimise your income to avoid spousal maintenance.  Earning potential is more relevant when considering property orders, not spousal maintenance.

In one case a husband was earning in excess of $200,000 per year as a management consultant during the marriage.  After separation he took a job as a university lecturer with a yearly income of $80,000.  At trial the Judge ruled that this was a deliberate attempt to minimise his income and he ordered spousal maintenance in the amount of $500 per week.  The original decision was overturned on appeal, as the husband produced unchallenged evidence that he only earned $250,000 because he worked in excess of 80hrs per week.  Since the separation one of the children decided that he wanted to live his father, therefore the husband couldn’t work 80hrs per week as a single parent, so he had to take a job which allowed him to appropriately parent his children.

In another case a spouse produced evidence of his weekly expenses exceeding his weekly income by almost $2,000, but over the course of the trial, the Court was able to determine that the spouse had not made full and frank disclosure of his financial position, and was somehow always able to meet substantial expenses which were important to him, despite his apparently compromised financial position, so he was ordered to pay spousal maintenance.

If you cannot resolve a dispute that relates to spousal maintenance, then you should book an appointment with one of our family law team for legal advice.

Nick Harrison

Nick Harrison

Founder & Solicitor

Nick is passionate about family law, domestic violence, and wills and estates, Nick has been practising as a Solicitor of the Supreme Court of Queensland and the High Court of Australia since 2012.  He provides practical legal advice to his clients, using his unique blend of impeccable legal skills and real-life experience as a police officer, husband and father.

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