The obligation on spouses to support each other financially is governed by the Family law Act 1975. It is gender neutral, that is, it applies to both spouses however in reality it is usually the woman who requires spousal maintenance for economic and social reasons.
Qualifying for maintenance
To qualify for maintenance, a person will need to show that they are unable to support themselves properly. This often occurs because they are caring for children or they cannot obtain work because of ill health, age or some other reason (i.e. lack of job skills).
Where it can be established that there exists both a need for support and an ability of the other party to pay, the court is more likely to grant spousal maintenance. If the person applying for spousal maintenance is receiving an income-tested pension or parenting payment, this will not be taken into account.
Applying for maintenance
An application for spousal maintenance must be made within 12 months of a divorce becoming final but can be applied for immediately on separation. If out of time, special leave of the court must be sought if the parties have been divorced for more than a year or consent sought from the other party to apply.
For De facto couples, such claims require a 2-year relationship or a child of the relationship or substantial contributions in relation to the relationship such that it a serious injustice would occur if spousal maintenance was not granted. A party to a de-facto relationship has 2 years after the end of the relationship to apply or 12 months after a Binding Financial Agreement (BFA) is set aside.
In addition, for a court to make any order in relation to a de facto relationship, it must be shown that either one or both of the parties must be resident in the jurisdiction where the application is made (application time) AND both parties being ordinarily resident in that jurisdiction when the relationship broke down for at least a third of the relationship.
In de facto claims, the court can also take into account the terms of any property or maintenance order made or proposed in relation to a de facto party’s spouse or other de facto.
Where a party must apply to the court for leave because they are out of time, a court will not grant leave unless it is satisfied:
That hardship will be cause to a party or a child if leave were not granted; or
That at the time of the deadline, the applicant was unable to support himself or herself without an income-tested pension, allowance or benefit.