A party to a marriage is able to institute an Application for Spousal Maintenance against the other party during a relationship (although this is rare) or after separation.   The obligation arises where one of the parties is unable to meet all of their own reasonable weekly needs from their resources or income which they generate or which they are able to generate.  If this is the situation, then an Order can be made against the other spouse in circumstances where that other spouse has a capacity to pay.

In the case of Mitchell (1995) FLC 92-601 it was held that:-

“The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself adequately. Where the line is drawn will depend on the circumstances of individual cases”.

Spouse Maintenance is not an automatic right upon separation.   The making of an Order for Spousal Maintenance and the amount which is to be paid under it depends upon the needs of the applicant and the ability of the respondent to pay.

A Court may make interim Orders and final Orders regarding spousal maintenance payments.  In certain situations, the Court also has the power to award spousal maintenance in a lump sum, rather than periodic payments. 

Maintenance may be ordered for a limited period while a spouse searches for employment or re-trains. Spousal maintenance awards are less likely where each spouse has retained the capacity to earn a living.

The terms of any property settlement received will also have a bearing on the maintenance that a spouse might receive.

As it does in property settlement matters, the Court will look at the factors set out in section 75(2) of the Family Law Act (or section 90SF(3) for de facto couples) in determining whether one party is able to adequately support themselves or not. A party may require maintenance because they have the care and control of the children or by reason of age, or physical or mental incapacity and is unable to obtain appropriate gainful employment.

It is important to remember that even if one party is unable to adequately support themselves then the other party is only liable to support that party so far as they are reasonably able to do so.  

Usually, there is also an obligation on the Applicant to “mitigate” their loss, i.e. by actively pursuing employment.  The Applicant’s need is limited to him or herself and does not include children.

Again the Court has discretion as to the amount of maintenance payable and in determining what is adequate, regard will be taken to the standard of living enjoyed by the Applicant and to which they had become was accustomed during the relationship. Whilst the pre-separation standard of living is not automatically awarded, the Courts will usually ensure that the Applicant has sufficient funds to live in “reasonable comfort”.

In the case of Wicklow [2007] FamCA 792, Judicial Registrar Johnston (as he then was) did not consider that the wife’s ownership of shares in her own name worth $110,000 precluded her from being awarded interim spouse maintenance. In that case, the wife sought interim spousal maintenance of $4,264 per month and was ultimately awarded $3,200 per month to meet her reasonable needs.

The parties had three (3) children, two (2) of whom were adults and one (1) aged 17 years at the time of the interim hearing.

The husband had claimed that he did not have capacity to pay maintenance however was found to have an earning capacity as a finance manager of between $200,000 and $300,000 per annum. He could also pay rent on a waterfront unit, fund overseas travel and had “an interest in boating and that obviously comes at a fairly significant cost.”

Judges have excluded as “self-support commitments” sporting club memberships, lotto tickets, money for gifts and donations; but have allowed certain entertainment expenses, holiday costs, cigarettes and alcohol expenses.

Each case is unique and each Judge is unique.

Understanding your rights and obligations around spousal maintenance can be complex—but you don’t have to navigate it alone. At Tosh Colls Family Law, we’re here to help you assess your options and determine what support you may be entitled to or expected to provide. 

Get in touch with our experienced team to discuss your situation and take informed steps toward financial stability post-separation.