Spousal Maintenance in Australia
Spousal maintenance in Australia is a legal requirement 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.
The first of these is spousal 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.
It is different from spousal maintenance only in that it deals with de facto relationships rather than legal marriages.
What is reasonable spousal maintenance and how much do I have to pay?
When assessing a spousal maintenance application, the court will take into account the following factors regarding both yourself and your ex-partner, to calculate 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
The above points are what is used for the ‘spousal maintenance calculator.’
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
What people mostly want to know is, can spousal maintenance be reduced?
Can spousal maintenance be reduced?
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.
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.
Spousal maintenance Australia examples
Moller v Moller is a case that deals with spousal maintenance in Australia and is an example of how the court deals with spousal maintenance applications in Australia.
Throughout the marriage of Mr and Ms Moller, the couple enjoyed a very high standard of living.
Mr Moller’s income was said to of averaged about $1.5million per annum.
The couple also shared two primary-school-aged children from the marriage.
In the final year that the couple was together, it was estimated by Ms Moller that $150,000-$200,000 was spent on family holidays away at the end of each school term.
Additionally, Mr Moller provided $2,300 weekly to Ms Moller during the marriage for personal expenses.
After the couple separated, Mr Moller continued to provide Ms Moller the weekly $2300 amount.
Mr Moller was also still responsible for paying the mortgage payments and rates on the family home where Ms Moller and the children live, as well as most of the children’s costs, including private school fees.
Despite this, Ms Moller approached the Family Court to seek interim spousal maintenance before a final property settlement.
She requested a $1700 increase to the weekly $2300, which would increase the total spousal maintenance order to a total of $4000.
In order to justify the increase, Ms Moller has listed a number of claims in her household weekly expenditures.
These range from $1000 a week for food-$300 for herself and $700 for the children, $1530 for holidays and $350 for cleaning.
Her personal average weekly expenses were totalled at $1405, including $300 for holidays and $150 for hairdressing and toiletries.
In response, Mr Moller stated that although he earned a weekly income of $30,200, he only had $3,191 left after meeting loan repayments and personal expenses.
As meeting the extra $1700 for spousal maintenance for his ex-wife would be difficult, Mr Moller suggested he could pay an extra $700 a week to Ms Moller instead.
Spousal maintenance for living expenses
The Family Court refused Ms Moller’s claim for $4,000 a week in spousal maintenance for living expenses.
In refusing the claim, Justice Hilary Hannam stated that Mr Moller’s necessary personal expenses could not amount to the $4,000 a week she requested; with many of the expenditures being noted as ‘extraordinary’.
Furthermore, Justice Hannam reminded Ms Moller that although she was the primary carer for the children of the marriage, she also had the capacity to work and earn a living to support herself.
Before having the children, Ms Moller had worked as a professional and run a business.
Thus, the Court decided to reject the request for the $1700 increase and instead went with Mr Moller’s suggestion of the $700 increase.
Overall, this set spousal maintenance for Ms Moller at $3000 a week, to be paid by Mr Moller.
Family Court’s views on spousal maintenance
It is notable that in Justice Hilary Hannam’s judgment, Ms Moller was told that she was not entitled to be maintained in the same standard of living as before the separation.
When a Court makes a decision regarding spousal maintenance, the Court will consider not only the respondent’s capacity to pay, but the needs of the applicant.
In this instance, Mr Moller stated despite his income, he had little money left over each week after repaying loan and personal expenses.
Thus, he could not afford to pay an exorbitant amount of spousal maintenance on top of what he was already providing his ex-wife.
Furthermore, many of her estimated weekly expenditures were not necessary or highly conflated to reflect a previous standard of living before the couple were separated.
Adding to this was the ability of Ms Moller to support herself.
Overall, this showcases that the Courts are reluctant to make orders which force one party to support an ex-partner beyond what is reasonable; as this would result in an unjust order.
Spousal maintenance New South Wales
Spousal maintenance in NSW falls under the Family Law Act 1975 (Cth), where the courts have the power to make a financial order wherein one party will provide the other with spousal maintenance.
Spousal maintenance is financial support paid by one party to their former spouse in circumstances where the ex-spouse is unable to meet their own reasonable expenses from their personal assets or income.
Spousal maintenance is granted on a ‘need’ basis, and extends only to what the other party can afford to pay.
It is not an opportunity for a former spouse to maintain a standard of living.
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.