You may have heard in American news or movies a term called ‘Alimony’. Perhaps you have heard about how Britney Spears had to pay $40,000 per month to Keven Federline, her drunken Las Vegas marriage, which resulted in two children. This payment was a monthly alimony payment to ensure Federline could maintain the lifestyle he had become accustomed to during his three-year marriage to Britney.
Whilst’ Alimony’ is an American legal term, there is an equivalent in Australia. Here, the term used is spousal maintenance. Although different names, the concept is much the same – a party to a relationship that earns a higher income may be liable to pay financial support to their ex-partner.
The right to receive spousal maintenance is not automatic like your right to a property settlement is. Applications for spousal maintenance are quite rare and are even more rarely are they granted. There is a two-limb eligibility test that sets a reasonably high threshold.
If you want to receive spousal maintenance from your ex-partner, you must prove two things. Firstly, you must establish that you are unable to support yourself adequately. Secondly, you have to show that your ex-partner is reasonably able to help you financially. The latter of the two steps is usually proven by records of income and bank statements, all of which you should have access to because of the rule of full and frank disclosure. With this information, you will be able to decide whether spousal maintenance is something your ex-partner can reasonably afford.
What does ‘adequately support’ even mean, and how do you prove that you cannot adequately support yourself? While the Family Law Act does not provide an exact definition of what ‘adequately’ means, we can figure out from case law what it is not.
The Family Law Act states three reasons you may not be able to support yourself adequately:
a) having the care of a child of the marriage;
b) age or physical or mental incapacity; or
c) for any other adequate reason regarding any relevant matter referred to in subsection 75(2).2
In considering whether to make any order about spousal maintenance, the courts will consider a wide range of factors, including (s75(2) and s 90SF(3)
- the care and control of the children under the age of 18 years;
- the age and state of health of the parties;
- the capacity for gainful employment
- the income, property and financial resources of each of the parties;
- the commitments of each of the parties to support themselves and other persons;
- the eligibility of the parties for a pension, allowance or benefit;
- a standard of living in all the circumstances that are reasonable;
- whether payment would increase the earning capacity of the other party;
- the rights of any creditors;
- any contribution to the income, earning capacity, property and financial resources of the other party;
- the duration and impact of marriage;
- the nature of cohabitation with any other person;
- the terms of any property settlement;
- the child support payable and being paid;
- the terms of any binding financial agreement;
- any fact or circumstances in the court’s opinion the justice the case require to be taken into account.
While the court looks to that list above when determining the need to order spousal maintenance, the list is not exhaustive. Going back to the three reasons you may not be able to support yourself adequately, the last one says ‘for any other reason’. Again, turning to case law, we know that adequate reasons can include having care of an adult child who is disabled, perhaps being in the care of elderly parents, or even if you are still unable to meet your maximum capacity despite working to your maximum capacity needs.
How does the court determine how much I get?
There is no pre-determined formula for determining spousal maintenance. The court will consider the applicants’ day-to-day expenses and those of the respondent. In an evolving economy, the court will consider each party’s financial needs and make a discretionary judgment based on each party’s financial stability.
What time limits apply?
Parties have one year from the date of their divorce to seek spousal maintenance. At the same time, de facto couples have 24 months from the end of their relationship. The courts may grant leave to apply for maintenance, but the applicant must establish particular grounds.
When do maintenance payments stop?
The right to regular maintenance payments ends if you get married again unless there are exceptional circumstances. It may also end if your:
- the financial situation improves, for example, because you are in a new de facto relationship
- responsibility for caring for children changes significantly
- a property settlement has been completed
- earning capacity improves.