There are legal obligations which arise as a consequence of marriage. Under the Family Law Act, each party has a duty to maintain the other party to the extent that he or she is reasonably able to do so. Two conditions must be met before an Order for spousal maintenance will be made.
- Firstly, that the party seeking the maintenance is unable to support him or herself; and
- Secondly, the party to pay the support has the capacity to do so.
In determining whether and how much maintenance should be paid, the Court will consider, among other things:
The party's age and capacity to work;
- The care of children who are under 18 years old;
- The income and earning capacity of each party;
- Any health matters which might effect an ability to work;
- A reasonable standard of living for the parties in all of the circumstances.
The Court must disregard income from Centrelink pensions for the person seeking support. If this pension income is the only income, for the purposes of the spousal maintenance application, that person will be considered as having no income.
Maintenance does not continue upon the spouse's death, the payer's death or when the party receiving the maintenance remarries. If the financial situation changes, Orders are able to be varied to reflect the new arrangements.
Periodic spousal maintenance may be ordered for a certain time period, such as until the children are old enough to go to school and the other party can re-enter the workforce. Spousal support may be payable to assist the applicant to study or pursue training towards gainful employment
Parties may agree to a lump sum payment of spousal maintenance instead of periodic payments. Some parties find this a better arrangement, as it resolves the matter once and for all and avoids the uncertainty that can arise with periodic payments.
An application for spousal maintenance can be made at any time after separation. You do not need to be divorced before
De facto Relationships
Lex Fori Lawyers are Australian family lawyers located in Sydney, specialising in legal matters surrounding de facto relationships.
De facto relationships are dealt with under the Family Law Act 1975 as a result in changes to the law in which all states and territories with the exception of Western Australia passed their power in relation to dealing with the division of property between de factos to the Commonwealth Government. The changes to the law also mean that same sex relationships are dealt with within the act in precisely the same way as all other relationships.