The Family Law Act states that a spouse in a marriage is liable to maintain the other spouse by way of spousal maintenance if they are reasonably able to do so and only if the other spouse is unable to support themselves for three reasons. This article will explain how the Court decides if after separation one person has to support the other.
This applies to married couples as well as de facto couples. The Family Law Courts will only award spousal maintenance if the person seeking maintenance is unable to support themselves due to –
- Care and control of a child under 18; or
- A physical or mental incapacity that does not allow them to have gainful employment; or
- Any other appropriate reason.
The threshold test is: Is the payer reasonably able to pay and is the applicant (person asking for the maintenance) unable to support themselves.
There is also what is called the no fettering principal which is essence means that the pre-separation standard of living must automatically be awarded where the payer is able to do so.
The guiding principal for all maintenance cases is reasonableness in the circumstances. Maintenance can often be only a temporary need until couples finalise their property settlement. As a result, a Court can not only make final orders for maintenance, but also interim orders and in some cases urgent/emergency orders for maintenance.
When deciding whether to order one party to pay maintenance, a Court will also consider maintenance factors which we have referred to as future needs factors in earlier articles. These factors include the person’s age, health, earning capacity, care of children and other factors.Spousal maintenance and Maintenance are complicated areas of Family Law. If you need help with your Family Law matter, call our specialised Family Lawyers now on 4324 7699.