Couples often have disputes over property and parenting issues when they decide to divorce, especially when women quitted their jobs and stayed at home to raise their children after giving birth, which is very common in Australia. Under this circumstance, women are usually in a vulnerable economic position after divorce. How to ensure their normal life after divorce? What are the principles to know about spousal maintenance?

Firstly, what is spousal maintenance? Spousal maintenance is financial support paid by a party to the other after the breakdown of their marriage or de facto relationship. Under the Family Law Act 1975, there’s a slight difference between parties in de facto relationship and marriage.

Generally, a person has a responsibility to financially assist their spouse, or de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets and the other party can afford to pay. Spousal maintenance is different to child support. Child support is usually dealt with administratively through Services Australia, while spousal maintenance is through the Court. Sometimes it can be difficult to separate expenses such as rent, utility bills and groceries for the spouse and children who living under the same roof.

Spousal maintenance should be paid regularly, such as each week, fortnight or month, or to be paid once in a lump sum payment.

What are the factors that the Court would consider when making a decision on spousal maintenance?

The Court considers the needs of an applicant, and the respondent's capacity to pay. When making an order of spousal maintenance, the Court must refer to the rules set out in Section 75 and 90SF of the Family Law Act 1975 and consider the followings :

• both parties’ age and health;

• both parties’ income, property, financial resources and capacity to work;

• the commitments that are necessary to enable a party to support themselves and any children, such as the need to pay a mortgage, education expenses, etc;

• the responsibility of either party to support any other person, such as a child of another relationship;

• a reasonable standard of living;

• how the grant of spousal maintenance enables the recipient to continue education or training to improve their earning capacity;

• how long a marriage has lasted and how it may affect the earning capacity of the parties. For example, one party may stay at home to care for children, which gradually diminishes his/her earning capacity;

• the terms of any proposed property settlement; and

• with whom the children live.

In making spousal maintenance orders, the Court will refer to section 75(2) of the Family Law Act 1975. Adequate support does not mean that the pre-separation standard of living must be maintained by way of spousal maintenance; and on the other hand, it does not mean to provide minimal living support either.

In summary, the Court will make its own judgment on a case-by-case basis . Women who are economically disadvantaged in a marriage are likely to suffer worse financial conditions after divorce without the assistance of professional family lawyers. If you are experiencing any difficulties or have any questions about spousal maintenance after divorce, you are welcome to contact us any time. At BG Legal & Advisory, we have Accredited Family Law Specialists and experienced family law solicitors who will work for your best interests.

This is general information only. Please contact us for expert legal advice that takes your unique personal situation into account prior to making any decisions based on this article.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*