Separation and divorce can be emotionally and financially challenging, and one area that often causes confusion and particularly heightened emotions is spousal maintenance. What this means is, in legal terms, fairly simple. It’s the obligation for one party to provide financial support to their former spouse or de facto partner following a separation. In practice, however, it can be challenging for separating couples to work out amicably.

In Australia, spousal maintenance is not automatic and depends on a range of factors considered by the courts. Speaking to a lawyer, and making sure that you understand your rights and obligations, can help you navigate this complex area of family law with greater clarity.

What Is Spousal Maintenance?

Spousal maintenance is the financial support paid by one partner to another after the breakdown of a marriage or de facto relationship. This support is intended to ensure that a person who cannot adequately support themselves is not left in a position of financial hardship due to the separation.

It’s important to note that spousal maintenance is entirely separate from child support. While child support is specifically for the care of children, spousal maintenance is about ensuring that a financially weaker partner can meet their own reasonable needs.

Who Is Eligible for Spousal Maintenance?

Under the Family Law Act 1975, a person may be entitled to spousal maintenance if:

They are unable to support themselves adequately due to:

Caring for a child of the relationship who is under 18,
Age or physical or mental incapacity for gainful employment, or
Any other adequate reason as determined by the court.

The other party has the financial capacity to provide that support.

Eligibility applies to both married and de facto couples, including same-sex relationships. However, for de facto relationships, the applicant must establish the existence of the relationship under Australian law, which generally means the couple lived together on a genuine domestic basis for at least two years.

When Can You Apply?

For married couples, an application for spousal maintenance must generally be made within 12 months of a divorce being finalised. For de facto relationships, the application must be made within two years of the relationship breakdown. In some cases, extensions may be granted, but they require a strong justification.
You can apply for spousal maintenance even before a divorce is granted, as long as the relationship has irretrievably broken down. Interim orders for urgent or short-term maintenance can also be sought where immediate financial support is needed.

How Do Courts Decide on Spousal Maintenance?

When determining whether spousal maintenance should be paid, and how much, the court assesses the applicant’s need against the respondent’s ability to pay. The process involves a detailed consideration of both parties' financial circumstances.

The court will look at factors including:

Each party’s income, property, financial resources, and debts.
The age and health of both parties.
Their respective ability to work.
What is considered a reasonable standard of living.
Whether the relationship affected either party’s ability to earn an income (for example, due to one partner sacrificing their career to raise children).

Spousal maintenance orders are tailored to individual circumstances. The court does not use a standard formula, which is why legal advice is so crucial in these cases.

Types of Spousal Maintenance Orders

Spousal maintenance can be paid in various forms, depending on what the court or the parties agree upon. These include:

Periodic payments – regular weekly, fortnightly, or monthly payments for an agreed or court-ordered period.
Lump-sum payments – a one-off payment that may form part of a larger property settlement.
Payment of specific expenses – such as rent, mortgage repayments, medical bills, or education costs.

In some cases, spousal maintenance may be ordered for a fixed period—for example, while the recipient undertakes education or training to return to the workforce. In others, it may continue indefinitely, subject to future changes in either party’s circumstances.

Your Rights if You’re Seeking Maintenance

If you believe you may be entitled to spousal maintenance, it’s important to act promptly and seek legal advice. Your rights include:

The right to a fair hearing of your financial circumstances.
The right to request financial disclosure from the other party.
The right to interim financial support where needed.

Being honest and transparent about your income, assets, and expenses is critical. Attempting to conceal assets or misrepresent financial capacity can lead to serious consequences in court.

Your Obligations if You May Have to Pay

If you are the higher-earning partner, you may be required to support your former spouse or partner if they cannot support themselves. Your obligations include:

Providing full financial disclosure.
Complying with any court orders made for maintenance payments.
Not taking steps to deliberately reduce your income or financial capacity in an attempt to avoid payment.

Failing to meet your spousal maintenance obligations can result in enforcement action, including garnishment of wages or property seizure. It's also worth noting that if your circumstances change—for example, you lose your job or become ill—you can apply to the court to have the maintenance order varied or discharged.

Can Spousal Maintenance Be Changed?

Yes, spousal maintenance arrangements are not set in stone. Either party can apply to vary or end a spousal maintenance order if there is a significant change in circumstances, such as:

The recipient remarrying or entering into a new de facto relationship.
A substantial change in income or employment status.
Improvements in the recipient’s ability to support themselves.
Retirement or illness affecting the payer’s financial capacity.

It’s important to apply through the appropriate legal channels—simply stopping or changing payments without court approval can put you at legal risk.

Overall, what’s important to understand is that spousal maintenance is a highly variable area, and really does take into account that every situation is unique. The courts can – and do - exercise broad discretion when making spousal maintenance decisions. For these reasons, it is critical that you seek high-quality legal advice from an experienced family lawyer (such as local divorce lawyer in Camden) is critical. They can help you understand your entitlements, negotiate fair outcomes, and ensure any agreements or court orders are appropriately structured and enforced.

Spousal Maintenance: What Are Your Rights and Obligations?