Spousal Maintenance

Spousal maintenance is the financial support of one spouse by the other spouse following the breakdown of a marriage. Parties to a marriage have a right to make an application for spousal maintenance under the Family Law Act 1975. Spousal maintenance can also be paid between parties to a de facto relationship and this is covered under the Family Court Act (WA)

The test considers the applicant party’s income and expenses, capacity to earn income and financial resources, and then the capacity of the other party to pay the maintenance sought.

There are different types of spousal maintenance:

urgent;
interim; or
final.

Spousal maintenance can be paid in a lump sum, or in periodic amounts, until a further order of the court, or for 3 years until a party completes a period of further training.

To make a spousal maintenance application a party needs to file an Initiating Application (or Application in a Case if the case is ongoing), an Affidavit in Support and Financial Statement as to their current financial circumstances. The statement includes weekly expenses such as groceries, electricity and home maintenance.

Urgent Spousal Maintenance

Urgent spousal maintenance can be by way of a lump sum payment or periodic payments.

Unlike an order for in interim spousal maintenance, urgent spousal maintenance applications are dealt with in a summary way, meaning the parties do not necessarily have to provide to the court with evidence of their financial circumstances.
In other words, an order for urgent spousal maintenance is usually made in circumstances that could be considered an emergency and when there is a clear need but no time for parties to provide evidence.

Lump Sum Spousal Maintenance

A lump sum payment may be ordered in circumstances where the party who is to provide the maintenance does not have the income to make payments to the other party periodically and on an ongoing basis. The court could determine that the “paying party” has deliberately put themselves in such a situation in a bid to avoid spousal maintenance. In such circumstances, the court will look to the nature and value of the assets the paying party has available to them to determine the availability of funds to provide a lump sum payment.

The party in receipt of the lump sum spousal maintenance has a responsibility to ensure the money is applied to their reasonable living expenses which they have demonstrated to the court they cannot pay themselves.

Interim Spousal Maintenance

Interim spousal maintenance may be ordered in circumstances where a party requires maintenance immediately after the breakdown of the relationship or marriage. However, an order for interim spousal maintenance cannot be made until both parties have filed affidavit evidence and a financial statement so the court.

The interim Order is a temporary order that will be in place until the matter is heard or resolved by consent, on a final basis, along with all other issues in the property settlement matter. Each party can bring an application in a case pending the final resolution of the matter if new issues arise.