Where parties separate and one party to the marriage/de facto relationship is unable to adequately support themselves, then the other party may be required to pay spousal maintenance.
A person has a responsibility, under the provisions of the Family Law Act to assist their former spouse or partner financially in circumstances where that person’s income or assets is not sufficient to enable them to meet their own reasonable living expenses.
Of course, there are elements which must be present in order for the Court to make a determination in relation to the payment of spousal maintenance, and generally speaking, a significant disparity in the amount of income each party is earning at the date of separation must be present to give rise to an entitlement for spousal maintenance.
There is no set formula for the calculation of spousal maintenance amounts, and regard will be given to the specific circumstances of each case that comes before the Court for determination. However, the Affinity Lawyers family law team are able to provide you with more specific information and guidance on the possible outcome in your specific circumstances if you would like to organise a comprehensive consultation with one of our lawyers to discuss your matter.
Our Gold Coast Family Lawyers note that in order for the Court to firstly decide whether an entitlement for spousal maintenance exists, the following elements are likely to be considered:
- The capacity of the person who would be paying spousal maintenance – are they reasonably able to support the other person?
- Whether the party seeking spousal maintenance has a sufficient need for spousal maintenance to be paid (i.e. are they unable to adequately provide for themselves on the basis of their income/assets). Factors that can contribute to the inability for a person to adequately support themselves includes suffering from a physical/mental illness or other incapacity that affects the person’s ability to work or having the care of children of the relationship who are under the age of 18.
If the Court is of the opinion that spousal maintenance should be paid, then the next step is for the Court to determine what a reasonable amount would be in all of the circumstances. Various factors would be considered at this point including:
– the age/health of both parties;
– the ability of each of the parties to work or obtain gainful employment;
– each parties current income, assets and financial resources;
– what a suitable standard of living would be for both parties; and
– whether the relationship between the parties affected either parties ability to earn an income.
In determining an amount, the Court will consider what a reasonable standard of living is for the parties in light of all of the circumstances, including what the reasonable day to day living expenses of the parties are, and carefully balance this between the need for one party to be supported and the capacity for the other party to provide the support after they have covered their own living expenses.
The standard of living prior to the parties separating is taken into account, however the Court is conscious that the fact that the parties have separated, are likely living in separate houses and the fact that assets have likely been divided means that the previous standard of living is no longer applicable.
Spousal maintenance is only intended to be in place for a short amount of time in order for the recipient to be able to get back onto their feet after separation by securing gainful employment, although in limited circumstances the spousal maintenance period can be extended to enable sufficient time for the recipient to undertake appropriate re-training to enable entry into the workforce.
With that in mind, it is important to note that spousal maintenance applications must be made within 12 months of a divorce becoming final if you were married, and within 2 years of separation for de facto couples.
Our experienced and professional Family Law team are able to guide you through the process, or provide you with specific legal advice tailored to your individual circumstances. Telephone our gold Coast office today on 5563 8970 to arrange your consultation.