SPOUSAL MAINTENANCE

A spouse does not automatically get maintenance payments from the other spouse. A separated woman or man who is not caring for children and who is able to work will probably not be awarded maintenance. To obtain maintenance a spouse will generally have to show that he or she cannot support him or herself properly because of the following criteria :

caring for children, or
an inability to obtain work due to old age, sickness, or some other reason.

In addition, the person would have to show that his or her spouse was reasonably able to pay the maintenance [Family Law Act 1975 s 72]. In deciding whether to make a maintenance order the court is required to take into account the following factors as set in section 75(2):

the spouses' income and financial resources and their ability to obtain work
their financial needs and obligations
their eligibility for social security payments
their age and health
whether either spouse is caring for a child under eighteen years
after separation, a standard of living that is reasonable in all the circumstances
the extent to which the spouse seeking maintenance has made a contribution to the resources or earning capacity of the other spouse
the length of the marriage and the extent to which it has affected earning capacity
the need to protect a parent who wishes to continue the role of parent
the financial circumstances of cohabitation if the spouse seeking maintenance is living with someone else
the terms of any property settlement
whether child support payments have been made or will have to be made in the future
any other relevant factor.

How much a spouse will be entitled to receive in maintenance after applying these rules will depend upon the individual circumstances of the case. Where a spouse's capacity to earn has been reduced as a result of a long period out of the workforce during the marriage, they may be awarded maintenance to cover a period of job-seeking or retraining. Where they cannot support themselves due to health problems, and the other spouse has the capacity to support them, maintenance may also be ordered. Maintenance is less likely with short marriages, or where each spouse has retained the capacity to earn a living.

A spouse may apply to the Family Court or Court of Summary Jurisdiction for a maintenance order against the other spouse at any time during their marriage or in the separation period leading up to the divorce. An application may also be made during the twelve month period after the divorce. An application may generally not be made more than twelve months after the divorce. Applications after this time can only be granted by leave of the court where the judge is of the opinion that hardship to the spouse and children would occur if leave was not granted [s 44]. This restriction does not apply to an application for maintenance of children (child support), which can be made at any time.

A maintenance order for a spouse ceases upon the death of that spouse or upon her or his marriage, unless the court makes a continuation order. Such an order may be made in (rare) cases, where, for example, a wife was formerly married to a wealthy man and then remarries a man in poor health or poor financial circumstances. Maintenance payments automatically cease on the death of the payer.

Spousal maintenance can be ordered to be paid as periodic payments or a lump sum. In making property orders, it is usual to specify whether any and what amount is paid as spousal maintenance [Family Law Act 1975 s 77A]. These orders bring claims for maintenance to an end.