After separation a former partner may be required to pay spousal maintenance either as a regular payment or a lump sum to the other party. Whether spousal maintenance is paid depends on one party’s need for financial support and the other party’s capacity to pay.
Considering whether to make an order for spouse maintenance
When considering whether to make an order for spouse maintenance the court takes into account:-
- the age and state of health of both the parties;
- the income, property and financial resources of both the parties and their physical and mental capacity for appropriate employment;
- whether either of the parties has care of a child of the marriage under 18 years;
- the financial needs and obligations of each of the parties;
- the responsibility of either of them to support any other person;
- a standard of living that “in all the circumstances is reasonable”;
- whether the payment of maintenance to the other party under consideration would enable them to undertake a course of education or training to start a business so as to be able to earn income;
- the extent to which the party under consideration has contributed to the income, earning capacity, property and financial resources of the other property;
- the duration of the relationship and the extent to which it has affected the earning capacity of either party;
- the need to protect a party who wishes to continue their role as parent;
- if either party is cohabiting with another person, the financial circumstances relating to cohabitation;
- the terms of any Order altering the interest of either of the parties in any property owned by either of them.
- any fact or circumstance, which, in the opinion of the Court, the justice of the case requires to be taken into account.
An application for spousal maintenance must be made within 12 months of the divorce order or 2 years of the parties separation if unmarried. If you wish to apply outside of this time the Court’s permission to apply must first be obtained.
An order for spousal maintenance is variable. The order ends as ordered by the court or on the death of one of the parties or remarriage of the recipient.
Can parties agree to end spouse maintenance?
Yes they can provided that the Agreement to do so is a Financial Agreement under the Family Law Act and neither party is in receipt of an income tested pension or benefit. We can help you with this.