How to get spousal support

Spousal Support Basics

Have you ever thought about what would happen if your de facto relationship ended? Do you know how to get spousal support from your ex de facto partner? These questions are particularly pertinent for separating de facto couples with children, where one party is the primary income provider to the relationship.

how to get spousal supportThe Family Law Act, provides a very limited legal obligation on one de facto partner to continue to provide for the other after separation. When considering how to get spousal maintenance, it is important to consider spousal maintenance as part of an overall de facto separation & property settlement application. There is a strict set of criteria the Courts adhere to when hearing applications for spousal maintenance. The applicant party must demonstrate that have lost their ability to earn an income as a direct result of the de facto relationship. The applicant party must also demonstrate that they are prepared to participate in retraining or to further education in order to become employable again.

Importantly for separating de facto partners with children, who are considering how to get spousal maintenance, an applicant with children, who is unable to work because they care for the children full time will find it easier to get spousal maintenance than a childless applicant. It is important to note that the child or children must be biologically or legally related to the respondent to the claim for maintenance. The same applies if the applicant cannot work because they are caring for a physically or mentally disabled child of the relationship.

The right to spousal maintenance as part of a de facto separation and property settlement is detailed in section 90SF(1) of the Family Law Act.

De facto couples have a two year time limit to make an application for spousal maintenance under the Family Law Act. In some cases the Court may grant leave to a party to file an application after this time limit but this is a separate hearing before the Court & an exception not the norm.

When considering how to get spousal maintenance there are three parts to the test for spousal maintenance. The three parts to the test include:

  • Is the person applying for the spousal maintenance exercising, truly unable to support themselves;
  • Is the person applying for spousal maintenance exercising their ability to support themselves has a reasonable financial need; and
  • Does the person that is being asked to provide the spousal maintenance have the financial capacity to do so, having considered their own financial commitments and standard of living.

De facto entitlements on separation stipulate that spousal maintenance can be paid for a specified period so one party can complete a course of education for example & re skill, or up until the children reach school age, or may be payable indefinitely, until varied by subsequent Court order.

De facto entitlements on separation including spousal maintenance can be varied at anytime by the Court providing the Court agrees there has been a significant change in the circumstances of the applicant party since the making of the order.

It is possible to have spousal maintenance made payable on an interim basis or on a periodic basis. Upon finalisation the de facto separation and property settlement matter, spousal maintenance usually ceases at this point.

how to get spousal supportI went through a de facto separation and property settlement a few years ago. My ex partner filed for spousal maintenance. While my lawyer wanted to fight the application I felt it was better to negotiate with my ex partner. We ended up agreeing to pay him quarterly installments that were then deducted from the final settlement amount. I did this because he didn’t have any money & I was advised by my Lawyer that everyone has de facto entitlements on separation. I thought my lawyer meant that my ex would probably win his application but I was mistaken.

I wouldn’t recommend this strategy for anyone going through a matter like this. I felt the payments made to my ex almost encouraged him to keep fighting instead of settling sooner as he had available funds to spend on his Lawyer.

The courts tend to make orders for spousal maintenance on an interim basis on a ‘needs’ basis and on the ability of the respondent party to pay the spousal maintenance. The courts focus tends to be on maintaining balance in the living standards of both parties pending resolution of the matter. This is especially evident, for matters involving de facto partners with children.

Parties considering how to get spousal maintenance also need to be mindful that the Court can order urgent spousal maintenance (see section 77 of the FLA). The Courts can also order lump sum or periodic payment of spousal maintenance and for relationship property to be transferred to one party as a form of spousal maintenance (see section 77A of the FLA). Both de facto partners with children and de facto couples without children may also contract out of spousal maintenance obligations by signing a binding financial agreement but you must take legal advice before considering this.

Remember, the information contained on the site does not constitute legal advice. If you think you need legal advice you should contact an Accredited Family Law Specialist.

We have a suite of resources on the site that can help you build your understanding about how to get spousal support & your de facto entitlements on separation. Scroll through the resources below or click through to the resources tab and filter based on your areas of interest. If you want to access our resources you can join the site as a member or simply purchase the individual resources you require.

 

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