Should I apply for Spousal Maintenance?
If you and your spouse or defacto partner have divorced or separated and you are unable to afford reasonable living expenses, you may be entitled to spousal or defacto partner maintenance.
Parties have an obligation to financially assist their spouse or former defacto partner should one of them be unable to afford their own reasonable living expenses. In circumstances where one party cannot financial support themselves, the spouse seeking the entitlement will be required to file an Application to the Court to have the issue determined. If the Application is successful, the Court will grant an order that the party with the greater income or financial capacity pay a sum of money to the other party to assist in financially supporting them.
When determining an application for spousal or de facto partner maintenance, the Court will need to establish that there is a significant gap in the spouses’ income. The Court will also consider a range of factors that include:
The age and health of both parties;
The income, property and financial resources of both parties;
Who has care of any children of the relationship;
A reasonable standard of living given the circumstances;
Both parties’ ability to work;
The duration of the relationship or marriage and whether this has impacted the earning capacity of the parties.
The recent case of Milano & Nolan [2018] FCCA 3901 dealt with an application for urgent spousal maintenance, where the Wife required urgent periodontal and dental work, which she could not afford by herself. Although both parties had not yet separated, the Wife sought orders for the lump sum payment of $4,500 for periodontal fees, $745 for dental fees and spousal maintenance of $943 per week.
The Court considered whether there was an immediate need for the Wife to be financially assisted and whether it was realistic for an Order to be made in the given circumstances. It was also necessary to consider the length of time that the Wife would need to be financially supported.
Given the urgent nature of the periodontal work performed and the costs incurred, it was determined that the Wife was in immediate need for financial assistance. It was therefore ordered that the Husband pay the Wife the lump sum payments of $4,500 and $745. The Application for weekly spousal maintenance was adjourned to be decided at a later date and is still yet to be heard.
If you have any questions about spousal or de facto maintenance or would like to discuss whether this is an option that applies to you, please contact us on (02) 8379 1835 to arrange a conference with us.
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Lagom Family Law is a boutique legal practice lead by Principal Lichee Hogland who strives to achieve the best possible outcome for her clients whilst being approachable and respectful.