Spousal Maintenance: What is the Alimony Process?

In situations where separation or divorce are concerned, spousal maintenance is often something that comes…

In situations where separation or divorce are concerned, spousal maintenance is often something that comes into play. The definition of spousal maintenance is a weekly maintenance that is payable by one spouse to the other, in the event that there is a great discrepancy in their individual income levels.

In essence, spousal maintenance is the recognition in a marriage/ de facto relationship of the mutual obligations that both parties have to each other, especially in situations where children are involved (it is important to note however, that spousal maintenance and child support payments are completely separate from each other).  In today’s article, we have a look at the alimony process in depth, so read on to find out more.

What Exactly Is Alimony?

The first question we’ll dive into is what exactly one can expect from the alimony process. First off, alimony is an American legal concept and term which is not used in Australia. Instead,   legislation in Australia refers to the term as “maintenance”.

Separated or divorced parties in Australia can potentially claim spousal maintenance where the spouse with the higher income must provide the other party with financial support. This financial assistance can be paid on a weekly, monthly or yearly basis, or even as a lump sum, depending on individual circumstances.

Are You Entitled To Spousal Maintenance?

Next up – finding out if you are entitled to spousal maintenance. To figure this out, we will look at the three main factors that come into play:

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Under Section 72 of the Family Law Act, a spouse is entitled to maintenance to the extent that the other spouse is able to maintain them, if they are unable to support themselves due to:

  • Being the sole carer of children shared between spouses
  • Age or physical and/or mental incapacity
  • Any other reasons deemed adequate by the courts.

Applying For Maintenance

If you qualify for maintenance, the next step is to submit your application. In most cases, it is recommended that you come to a mutual agreement with your ex-spouse before commencing legal proceedings. If you cannot reach an agreement, you can proceed to file an application in the Federal Circuit Court seeking spousal maintenance orders. Keep in mind that you will need to produce a financial statement including information about your income and expenses when making your application. Your spouse will also have to submit one of their own.

If the court deems that you urgently require financial assistance, it may order an immediate payment to be made pending the finalisation of your application.

Determining How Much You Get

In order for the courts to make a decision on how much you should be paid, they will look into factors such as:

  • Income and financial resources or assets both parties have
  • Capacity for employment
  • Care of children involved
  • Whether either party is responsible for supporting anyone else
  • Whether either party is eligible for superannuation benefits
  • Reasonable standard of living
  • How much financial contribution the applicant has made to shared resources
  • Length of the relationship and if it has affected the earning capacity of the applicant
  • Any other circumstances the court considers should be taken into account (Section 76, Family Law Act).
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For once married couples, you have exactly 1 year from the date of your divorce to apply for spousal maintenance. For de-facto relationships, you have two years from the date of final separation to make your application.

If you fail to meet these deadlines, you can still ask the court for special permissions to file an application, but do note that this doesn’t guarantee that they will allow for it and is based on each person’s individual circumstances.

We hope that this article has given you the insight you need into the process of applying for spousal maintenance. If you are seeking more information about spousal maintenance, we highly recommend getting in touch with a family lawyer who will be able to assess your situation and give you the best advice for your individual circumstances.