Your rights to spousal maintenance

On top of emotional distress and potential acrimony, former partners are often faced with adjusting to new financial realities as well.  This might mean selling a beloved family home, setting up separate households and re-structuring finances.

Sayer Jones

On top of emotional distress and potential acrimony, former partners are often faced with adjusting to new financial realities as well.  This might mean selling a beloved family home, setting up separate households and re-structuring finances.

The dissolution of a couple’s financial partnership can be just as confronting as their physical and emotional separation.

Melbourne-based family lawyers Ben Sayer and Will Jones, founders and principals of Sayer Jones, have extensive experience in assessing this very scenario.

"Financial uncertainty can contribute significantly to the emotional burden typically experienced by people going through a separation," says Sayer.

"For that reason, we place significant importance on ensuring clients have a clear understanding of their legal rights and responsibilities."

In some cases, one member of a former couple finds themselves at an economic disadvantage as they navigate that process. In these cases, they may be eligible for spousal maintenance (married couples) or maintenance (de facto couples), according to Sayer and Jones.

While there is no such thing as "alimony" in Australian family law, spousal maintenance is a similar concept.

Sayer says: "The law around maintenance serves to protect those with limited financial means. This is particularly where they have the care of children, or where there is yet to be a proper consideration of the economic consequences of the breakdown of the relationship."

He notes maintenance is separate to child support, although people sometimes get the two confused.

While most people are aware of the concept of maintenance, there are often misconceptions around who is entitled to it and who is required to pay it.

"The party asking for maintenance has to establish a need for these payments and the other party will have to make those payments if they have the financial capacity to do so," says Jones.

He adds there is no mathematical calculation for entitlements, stating: "The parties can agree on an amount, or a Court will consider a range of factors to determine the amount to be paid."

Jones confirms these factors can include a person’s age and state of health, the length of the relationship, caring responsibilities for children, and a reasonable standard of living.

"Every case is different," he concludes. "It is important to get legal advice about your own specific circumstances."

Sayer adds: "Payments can be a defined amount paid weekly, monthly or at other regular intervals. Alternatively, it can be in a lump sum, or by way of meeting certain defined expenses for the benefit of the person receiving maintenance (e.g. payment of phone bills, mortgage payments or utilities)."

Typically, payments are made for a finite period, either as agreed between the parties or by order of a Court.

"However, each case is different and, if appropriate, maintenance can be ordered to be paid for relatively long periods," says Sayer.

Sayer and Jones confirm that a party entitled to receive payments can make an application to a Court to enforce the maintenance obligation if the other refuses to pay.

That said, there may also be circumstances where an order or agreement is changed, according to Jones.

"Again, each case will be different and that is why it is essential to seek legal advice," he says. "Some examples include changes in the cost of living or the personal circumstances of the parties."

Sayer adds: "A new relationship can also have an impact, so we always encourage people to get legal advice if circumstances change.

"Time limits apply when seeking maintenance or spousal maintenance. Ask a lawyer about the time limits that apply to your circumstances."

For more information about spousal maintenance, maintenance, or other family law issues, please call [phone]; email [e-mail] or visit www.sayerjones.com.au.

Originally published as Your rights to spousal maintenance