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Spousal Maintenance

  • FAQ
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  • January 28, 2015

Spousal Maintenance

Spousal maintenance relates to the ongoing expenses of one of the parties to the marriage. It differs from child support which is concerned with ongoing expenses relating to children.

There is a wide body of case law relating to spousal maintenance. Trying to provide a summary of that case law in a small space like this is not really feasible. However, a preliminary look at some of the relevant sections of the Family Law Act can make a useful starting point.

Sections 71, 72, 74, 75, 77, 77A and 80-85 of the Family Law Act provide in relation to spousal maintenance.

Section 72(1) provides:

“(1)  A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)  by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)  by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)  for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).

Section 75(2) provides:

  • (2)  The matters to be so taken into account are:
    • “(a)  the age and state of health of each of the parties; and
    • (b)  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
    • (c)  whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
    • (d)  commitments of each of the parties that are necessary to enable the party to support:
      • (i)  himself or herself; and
      • (ii)  a child or another person that the party has a duty to maintain; and
    • (e)  the responsibilities of either party to support any other person; and
    • (f)  subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
      • (i)  any law of the Commonwealth, of a State or Territory or of another country; or
      • (ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and
    • (g)  where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
    • (h)  the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
      • (ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
    • (j)    the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
    • (k)  the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
    • (l)    the need to protect a party who wishes to continue that party‘s role as a parent; and
    • (m)  if either party is cohabiting with another person–the financial circumstances relating to the cohabitation; and
    • (n)  the terms of any order made or proposed to be made under section 79 in relation to:
      • (i)  the property of the parties; or
      • (ii)  vested bankruptcy property in relation to a bankrupt party; and
        • (naa)  the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
          • (i)  a party to the marriage; or
          • (ii)  a person who is a party to a de facto relationship with a party to the marriage; or
          • (iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
          • (iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
        • (na)  any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
    • (o)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
    • (p)   the terms of any financial agreement that is binding on the parties to the marriage; and
    • (q)  the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.”

Section 75(3) says:

“(3)  In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.”