Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Ex Has a New Partner – Can I Stop Paying Maintenance?
So, your ex has a new partner? You are probably wondering if you have to continue paying spousal maintenance when your ex remarries.
As with most matters related to family law, this is up to the family court to decide and will be evaluated on a case by case basis according to the laws set out in the Family Law Act 1975.
Spousal Maintenance in Australia
The family law courts of Australia deal with two types of spousal maintenance applications.
The first of these is spouse maintenance. This refers to financial support that is paid to an ex-husband or wife when a marriage breaks down, and one party is unable to support themselves adequately.
The second type of application is for de facto partner maintenance and is different from spousal maintenance only in that it deals with de facto relationships rather than legal marriages.
Under the Family Law Act, a person has the financial responsibility to financially support their ex-spouse or ex de facto partner if they are not able to do so themselves.
Both parties to the relationship have an equal responsibility to support each other, with this obligation continuing after separation and divorce.
The amount of spousal maintenance the court orders to be paid depends on several factors and is separate from child maintenance obligations.
How Much Maintenance?
When assessing a spousal maintenance application, the court will take into account the following factors regarding both yourself and your ex-partner, to determine how much maintenance you have to pay:
- Your age and the state of your health
- What is considered to be a suitable and fair standard of living
- Your capacity to work and whether the relationship has affected your ability to earn an income, both now and in the past. The is particularly relevant where children are involved, and the primary caregiver has put their career on hold to look after the couple’s children
- Your income, financial resources, property and other investments
For the family court to be able to make an order for spousal support, there must be two necessary elements. The first of these is capacity; one person must have the financial ability to be able to support the other. The second of these is need; the other party is unable to support themselves adequately from their own income stream for one of the following reasons:
- They are the primary caregiver to a child from the relationship who is under the age of 18
- They have the physical or mental incapacity to work
Remarriage and Spousal Maintenance
If your ex remarries, your requirement to pay maintenance will stop unless a court orders otherwise.
If your ex enters into a new de facto partnership, the court will look at your ex’s new financial situation and re-evaluate their ability to support themselves financially.