Spousal Maintenance 101 – Legal Rights and Obligations in Queensland
You may have heard of Spousal Support, Spousal Maintenance or alimony, but what is it in Queensland? Sometimes there is a disparity in the income between the two parties to a marriage or de facto relationship separation. The lower income party may seek Spousal Maintenance, which is a kind of financial support, from their former partner.
What is Spousal Maintenance? Is it the same as alimony?
A person may pay Spousal Maintenance to their former spouse in a marriage separation or divorce if they are found to be unable to properly support themselves. Maintenance may also be paid in the breaking down of a de facto relationship. De facto relationships will need to meet legal requirements to define a de facto relationship.
You may have heard of the term “alimony” before. Alimony concerns American law with different legal requirements. In Australia, “maintenance” is the term used for spousal support under the Family Law Act.
Is Spousal Maintenance different to Child Maintenance or Child Support?
Spousal Maintenance is different to Child Support and it is possible to have to pay both. Spousal Maintenance does not require that the parties have a child. Spousal Maintenance is paid in support of the former spouse whereas Child Support is paid for the benefit of the child of the relationship.
Will I need to pay Spousal Maintenance?
You may pay Spousal Maintenance due to informal agreement, Consent Orders, Binding Financial Agreements such as a Prenuptial Agreement or a court order made by the Family Court where a party has commenced proceedings. Generally, you will need to pay maintenance where it is legally enforceable.
Parties to a marriage both have a duty to financially assist their partner if one party cannot reasonably meet their expenses with their own income. This duty is to support each other as much as you can realistically pay even after separation or divorce. However, the lower income party will still need to try and receive reasonable income before looking to receive maintenance. For example, a party should consider seeking paid employment over mostly unpaid work in an unpredictable career path or employment for teenage children.
The Court will consider different criteria under the Family Law Act. Under Section 72(1), to the extent of reasonability, you will need to pay maintenance to the other party if they are unable to support themselves adequately due to
- Being in control of the care of a child of the relationship under 18 years
- Age, physical incapacity or mental incapacity that makes it difficult to attain gainful employment
- Or other adequate reasons.
The court may consider these reasons in relation to factors under Section 75(2), which include but are not limited to
- Age and health of the parties
- Income, property and assets of the parties
- The responsibilities the parties may have to support another person
- Whether the parties have a reasonable standard of living
- Lifestyle of the parties
- Whether maintenance would assist the other party in increasing their earning capacity
- If the higher income earner is able to meet any current Child Support payments
How is Spousal Maintenance calculated?
The test for how much Spousal Maintenance should be paid is quite broad and relies on the discretion of the Court using a two-step test. The lower income earner must be able to show that
- With the exclusion of government payments like Centrelink, they are not able to meet their reasonable financial needs due to lacking in their income, and
- The higher income earner is able to meet the needs of the lower income earner as they earn more than their reasonable financial needs.
The Court will look at the individual circumstances of each case, with consideration of the factors mentioned above to decide the “reasonable financial needs” of the lower party. The test is broad because each situation can vary greatly. Spousal Maintenance can be paid periodically or as a lump sum.
When does spousal maintenance finish in Queensland?
There are various reasons either party may end or change Spousal Maintenance. Spousal Maintenance does not automatically end, but there are things that may occur that may allow a party to cease or change payments. Life changes that may affect future payments include
- The payer of maintenance has:
- Died
- A decrease in income
- An increase in reasonable financial needs such as needing to support a new partner
- Sickness or sickness of a new partner
- The receiver of maintenance:
- Remarries or enters into a stable and continuing de facto relationship
- Improves in financial circumstances or earning capacity
- The responsibility for the care of children has changed
- The cost of living for either party has changed since the order was made
- If maintenance was made through consent, payments are too much or too little
- There was false evidence in the original proceedings.
Be sure to contact us if you are looking to cease payments or need to know your obligations on notifying your ex-partner of a change in circumstances.
How can a lawyer help with this process?
It is quite difficult to determine or predict how much you have to pay or are entitled to receive in Spousal Maintenance. The Court has so much to consider and the test is so broad. At Divorce Hub, we are experienced with these matters and are here to give you legal advice before seeking Court Orders or making a Binding Financial Agreement for Spousal Maintenance.