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Spousal Maintenance and Child Support & Maintenance
Spousal Maintenance
Spousal Maintenance is completely separate to Child Maintenance.
What is Spousal Maintenance
Spousal Maintenance is an amount paid by one spouse to the other to assist them in supporting themselves. It can be payable as a weekly amount for a certain period of time or it can be paid as a lump sum amount.
Who can apply for Spousal Maintenance
A spouse who was in a marriage is able to apply for spousal maintenance. Pursuant to legislation changes, a de-facto spouse who separated after 1 March 2009 is also able to apply.
When is Spousal Maintenance payable
The general principle is that one spouse can be liable to maintain the other spouse to the extent they can reasonably do so, if the other party is unable to support themselves adequately. The reasons for an inability to support himself or herself include:
- having the care and control of a child of the marriage who has not attained the age of 18 years;
- age or physical or mental incapacity for appropriate gainful employment; or
- any other adequate reason, having regard to any relevant matter referred to in subsection 75(2) of the Family Law Act 1975.
Matters to be taken into consideration in relation to spousal maintenance
Section 75 of the Family Law Act 1975 provides the following:
- In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
- The matters to be so taken into account are:
- the age and state of health of each of the parties;
- 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;
- whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
- commitments of each of the parties that are necessary to enable the party to support:
- himself or herself; and
- a child or another person that the party has a duty to maintain;
- the responsibilities of either party to support any other person;
- subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
- any law of the Commonwealth, of a State or Territory or of another country; or
- 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;
- where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
- 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;
- 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
- 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;
- the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
- the need to protect a party who wishes to continue that party's role as a parent;
- If either party is cohabiting with another person—the financial circumstances relating to the cohabitation;
- the terms of any order made or proposed to be made under section 79 in relation to:
- the property of the parties; or
- vested bankruptcy property in relation to a bankrupt party;
- 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
- any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
- the terms of any financial agreement that is binding on the parties.
3.0 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.
Time Limits
If an Order for spousal maintenance has not previously been made, there must be an Application to the court for spousal maintenance within:-
- 1 year of their divorce becoming absolute for married couples; or
- 2 years of separation for de facto couples.
An application to the court outside the time limit will only be granted in limited circumstances. An application to vary an existing spousal maintenance order is not subject to these time limits.
Child Support and Maintenance
It is important to make sure children are being provided for financially. The Ferguson Cannon family law team have expertise in Child Support. Call today on (07) 5443 6600 for a free, no obligation discussion and comprehensive, down to earth advice.
Child Support is financial support for a child under 18 years of age. Child Maintenance is financial support for a Child over 18 years of age.
Upon separation, a child support assessment is not automatically made. A parent with whom children reside after separation must lodge an Application for Child Support with the Child Support Agency.
The Child Support Act provides a mathematical formula for the automatic calculation and assessment of child support.
The Child Support Act is a very complex and difficult piece of legislation. Our family law team are able to advise you specifically about issues relating to child support.
Further information is set out in a fact finder in that section of our website.
Call our office today on (07) 5443 6600 and speak with Michelle Beatty for comprehensive and down to earth legal advice.
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