Navigating Spousal Maintenance After a De Facto Relationship in NSW

Spousal maintenance laws and requirements are not just for people who were married. In New South Wales, many people leave a de facto relationship assuming “we were never married, so maintenance doesn’t apply to us,” and that can be a costly mistake.

Spousal maintenance in NSW is governed by federal law, not state law. The Federal Circuit and Family Court of Australia (FCFCOA) deals with maintenance for:

• People who were married (Part VIII of the Family Law Act), and

• People in an “eligible de facto relationship” whose relationship has broken down (Part VIIIAB).

Since 1 March 2009, de facto couples in NSW have been able to have their financial matters (property and maintenance) determined in much the same way as married couples, provided their relationship and separation meet the criteria in the Act.

That “eligible de facto relationship” test is the first key difference. Before you can seek de facto maintenance, the Court must be satisfied that:

• You were in a genuine de facto relationship; and

• One of four “gateway” criteria is met, for example:

• The relationship lasted at least two years, or

• There is a child of the relationship, or

• The relationship was registered, or

• One party made substantial contributions, and serious injustice would result if orders were not made.

Married couples do not have to prove this eligibility threshold – the existence of the marriage is enough.

1. The basic test for spousal (and de facto) maintenance

For both married and de facto couples, the core question the Court asks is essentially the same:

1. Is one party unable to support themselves adequately?
   Under section 72 (marriages) and section 90SF (de facto relationships), this might be because of:

• Caring for a child under 18,

• Age or physical/mental incapacity, or

• Any other adequate reason.

2. Does the other party have the capacity to pay?
   The Court will only make a maintenance order if the other party can reasonably afford to provide support after meeting their own reasonable needs.

If both limbs are satisfied, the Court then looks at a range of “future needs” factors set out in section 75(2) (for marriages) and applied in de facto matters via section 90SF(3). Those factors include:

• Age and state of health of each party

• Income, property, financial resources and earning capacity

• Whether either party has the care of a child under 18

• Commitments to support themselves and others

• The standard of living that is reasonable in the circumstances

• How the relationship has affected each person’s earning capacity.

The law does not promise either party the lifestyle they enjoyed before separation, nor is maintenance automatic. It is a discretionary remedy, tailored to need and capacity, and often time-limited while the receiving party re-establishes their earning capacity.

2. Time limits: 12 months vs 2 years

One of the most important, and commonly misunderstood, differences between married and de facto partners is the time limit for starting Court proceedings about spousal maintenance.

Under section 44 of the Family Law Act:

• Married couples generally have 12 months from the date the divorce order takes effect to start Court proceedings for property settlement or spousal maintenance.

• De facto couples generally have 2 years from the date of separation to start Court proceedings for property and de facto maintenance.

Because there is no “divorce” for de facto couples, the clock starts ticking from the breakdown of the relationship, not a later formal step. That makes it crucial for de facto partners to:

• Be clear about when separation occurred, and

• Seek legal advice well before the two-year limit expires.

It is sometimes possible to apply “out of time”, but only with the Court’s permission (called “leave”), and this will only be granted in limited circumstances, usually where hardship to a party or a child would otherwise result.

3. How maintenance works in practice

Whether you were married or in a de facto relationship, maintenance can be:

• Urgent or interim, to deal with immediate needs;

• Periodic (ongoing weekly or monthly payments);

• Lump sum in some cases; or

• Provided via a maintenance agreement or as part of consent orders.

In practice, your lawyer will usually:

1. Prepare a detailed budget of your reasonable living expenses.

2. Compare this to your income and financial resources to demonstrate any shortfall.

3. Analyse the other party’s income, assets, liabilities and reasonable living costs to show capacity to pay.

The same framework applies whether the relationship was a marriage or an eligible de facto relationship.

4. Common misconceptions about de facto maintenance

People leaving a de facto relationship often assume the rules “must be the same as marriage”. In reality, there are important nuances:

• “You only get maintenance if you were married.”
  Incorrect. The Family Law Act imposes a duty to maintain a former de facto partner in much the same way as a former spouse, provided the relationship is eligible and the two-limb test (need and capacity) is met.

• “Our relationship was under two years, so there’s no claim.”
  Not always. If there is a child of the relationship, the relationship was registered, or one party made substantial contributions and serious injustice would result if no order is made, the Court can still have power.

• “We can sort out property now and think about maintenance later.”
  Property and maintenance are often linked, and both are subject to the same limitation periods. Leaving maintenance to “later” can result in falling outside the time limit.

• “Maintenance is forever.”
  In most cases, maintenance is designed to be transitional – allowing one party time to retrain, re-enter the workforce, or adjust after years out of paid employment. The Court will consider the likely duration of need and may set an end date or provide for review.

5. Practical steps if you are separating from a de facto partner in NSW

If you are in NSW and your de facto relationship has ended (or is about to), consider:

1. Recording the date of separation
   Confirm this in writing (for example by text or email) so there is less scope for dispute later – this date drives the two-year limitation period.

2. Gathering financial information early
   Bank statements, payslips, tax returns, superannuation statements and details of any trusts or companies will all be relevant to both property and maintenance.

3. Considering negotiation and formalisation
   Even if you reach agreement, it is usually safer to document that agreement through consent orders or a binding financial agreement so that expectations about maintenance are clear and enforceable.

4. Getting tailored legal advice
   This article is a general overview only. Small details – such as the length and timing of your relationship, interstate moves, or complexities around income structures – can significantly change the analysis.

Final word

For many de facto couples in NSW, the law around spousal maintenance is closer to marriage than they realise – but not identical. The extra steps of proving an eligible de facto relationship, watching the two-year time limit from separation, and navigating the “need and capacity” test mean that early, informed action is vital.

If you in need of a family lawyer in Camden, or any of the other areas that Espino Law services, and are unsure whether you may be entitled to maintenance (or exposed to a claim), please don’t hesitate to reach out to our team to start the conversation.