Sometimes, when a married or de facto couple separate, one of them is unable to support themselves. Under the Family Law Act, a person in that situation may be able to claim spousal maintenance payments.
Spousal maintenance is payable when one party to a marriage or de facto relationship is unable to meet the expenses necessary for their own self-support and the other party has the capacity to contribute towards those expenses.
The court will look at the income of the party seeking spousal maintenance, but the court will not take into account an income tested pension that is being paid to that party. The court will also consider the income-earning capacity of the party seeking spousal maintenance – a party who has a clear income-earning capacity will be expected to take reasonable steps to find employment in the area in which they have training and/or experience.
The court only considers the expenses reasonably necessary for the claiming party’s self-support, but in doing so the court will have regard to the quality of life that the parties had prior to separation and will also have regard to the expenditure of the other party under the same headings. For example, the court might accept what appears to be a high weekly expenditure for hobbies by the claiming party if the other party also has a high weekly expenditure for hobbies.
If the court is satisfied that the party seeking spousal maintenance is unable to meet his or her expenses from their income, the court will then consider whether the other party has the capacity to make a payment towards those expenses. Once again, the court will look at both the income and the income-earning capacity of the liable party and will carefully scrutinize the expenditure of that party. If, after conducting that exercise, the court is satisfied that the party from whom maintenance is sought has the capacity, from their actual or reasonably achievable income, after payment of their own reasonable expenses, to make a payment towards the expenses of the claiming party, then the court will order the payment of spousal maintenance.
It is important to note that the court looks at the income available to pay expenses. What that means is that if a party has some savings, but little or no income to meet their expenses, they are not required to exhaust their savings before they can claim spousal maintenance.
Experience tells us that there are many people who may be eligible for spousal maintenance who don’t claim it. If you believe that you may be eligible to make a claim, you should raise that with your lawyer.
In most instances, it is important to speak to a family lawyer first. We have experienced solicitors in Newcastle and the Central Coast area that can help you through your family law matter.
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