The Spousal Maintenance Checklist
When it comes to spousal maintenance, it’s important to make sure that you’re not left short-changed, so you can move on with your life, both emotionally and financially.
Section 75 of the Family Law Act 1975 contains the essential list of all things a court considers when determining a spouse’s right to maintenance.
But it’s one thing to know what the list is, and quite another to know what it really means. We’ve run through the list and put together a spousal maintenance essentials guide to help you maximise your entitlements, and know where you stand.
But it’s a wise idea to consult a legal representative who can help break the list down into practical terms, and apply it to your particular situation.
The spousal maintenance essentials guide
Age and state of health
When determining a right to spousal maintenance, or quantifying the appropriate amount, the courts look at the age and health of both you and your spouse.
If you are the one applying for spousal maintenance, the court will consider whether you have the capacity to work and live independently without care. If for example, you are young, fit and pursuing a burgeoning career, your position regarding spousal maintenance might be significantly different to someone who is older and doesn’t work, or is suffering a long-term illness.
Likewise, if your partner is retired, elderly, or cannot work due to ill health, their ability to pay spousal maintenance might be significantly compromised.
Income, property and financial resources
Regardless of whether your spouse is employed, there may be enough significant separate assets to consider that your spouse has adequate financial resources to pay maintenance.
For example, consider whether your spouse is a trust beneficiary. Is your spouse self-employed? Does your spouse enjoy annual dividends from share stocks? Are there overseas investments? All of these financial resources can have great weight in your application for spousal maintenance.
Ability to work
When determining spousal maintenance, the court will look at the physical and mental capacity of both parties to assess their ability to work.
A young, fit and otherwise healthy spouse may be suffering severe anxiety or mental health issues, which may impact their ability to achieve gainful employment.
Similarly, an injury or disability may affect one party earning a gainful income.
The courts will weigh up all factors to determine the most appropriate outcome for a spousal maintenance order.
Child care and control
The courts also consider whether a party, or both parties, have care and control of any minor children under the age of 18.
Young children naturally have a lot of needs and associated expenses, which can also increase living expenses in the home, bills, and other costs. If one party has the primary care and control of the children, the court will take this into consideration when making an order to support that spouse financially.
Pre-existing commitments
Courts will take into account any pre-existing commitments of the married couple. These may include things that are necessary to enable a party to support themselves, or any children they are responsible for.
It’s a broad category, but can include things like kids’ sporting games and extra-curricular pursuits, academic pursuits such as tertiary study, and some social pursuits (eg celebrity appearances or endorsements).
Pensions, allowances and benefits
In determining a person’s right to spousal maintenance, and certainly their ability to pay maintenance to a spouse, courts will consider any pensions, allowances or benefits that a person receives, or is otherwise entitled to.
These may include veterans’ benefits, study benefits, accommodation and maintenance government support payments, and other benefits or entitlements.
Relevant laws
The courts will consider any laws that are relevant to a person’s right to receive or pay spousal maintenance – including the laws of another country. An example might be tax or criminal laws, or an existing order, proceeding, or judgment.
Superannuation
Any superannuation fund or scheme is taken into account when determining an order for spousal maintenance, even if that scheme is self-managed or operated outside of Australia.
Standard of living
As courts aim to preserve the status quo of the parties with an order for spousal maintenance, a key consideration in determining the amount payable is their standard of living, where the parties have separated or divorced.
If for example, one spouse is living in a trust-owned mansion and receiving annuities from separate shares and investments, while the other is renting a studio and raising children on a part-time salary – that spouse may have a good claim for spousal maintenance and support.
Earning potential
While a spouse may not be working fulltime at present, they may be undertaking a course of education and development, or starting a business that will result in a marked change of income within a foreseeable period of time.
The courts will take this future windfall into consideration when determining spousal maintenance.
Creditors
Does your spouse have other creditors knocking on their door? If so, this might have an impact on the amount you can claim for spousal maintenance.
Financial contributions
Courts will also consider the extent to which a spouse has contributed to the income, earning capacity, property and financial resources of the other party.
Length of marriage
Courts have different rules when it comes to short-term marriages, often preferring to put parties back into an original position rather than trying to preserve the status quo. Therefore, the length of the marriage can have a significant bearing on a person’s right to receive continued maintenance.
Parenting
Courts will consider the need to protect a party who wants to continue their role as a parent, ensuring their status quo is maintained.
Co-habitation
If you’ve moved on and are living with another partner, enjoying a shared income and support, then you might find this could adversely impact your right to receive spousal maintenance.
Other factors
Property settlement orders, bankruptcy and other factors can also play a significant role in helping a court determine whether a person is entitled to spousal maintenance, and how much they can expect to receive.
While the list is comprehensive, it is by no means exhaustive, and that is why getting quality legal advice before making any spousal maintenance application is worth your time and money.
Have a chat with one of our expert consultants today about where you can expect to stand in your application for spousal maintenance.