Simply put, spousal maintenance is when a partner provides ongoing financial support for their former partner.
According to the Family Law Act, following separation or divorce, partners have a duty to support and maintain each other to the extent that they are reasonably able to do so.
In determining whether spousal maintenance should be provided, the test to be applied is whether:
- One partner (the applicant) is unable to meet their own reasonable needs by reason of:
- Having the care and control of a child of the relationship who is under the age of 18;
- The age or physical or mental incapacity for employment; or
- For any other adequate reason and
- The other partner (the respondent) has the capacity to pay.
In considering spousal support, and how much if any should be paid, the court will try to decide on what is most reasonable, based on the following information (for both partners):
- Your income, property, financial resources and debts;
- Your age and health
- Your ability to earn, and whether this has been affected by the relationship
- What is considered to be a suitable standard of living; and your reasonable expenses
- Whether the children live with you or your former spouse.
Applications for spousal maintenance must be made within 12 months of your divorce becoming final or for de facto relationships within 2 years from the date of separation. Later applications require special permission from the court, but this is not always granted. It is best to seek legal advice in this regard.
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