What is ‘Spousal Maintenance’?

You’ve heard about it but what does it actually mean and could it apply to you?

Spousal maintenance (which is sometimes referred to as alimony), is where one party to a marriage or de facto relationship is required to pay maintenance to the other party following their separation or divorce. It is important to distinguish spousal maintenance from child support as the purpose of spousal maintenance is for one spouse to assist another with reasonable living expenses.

Parties can apply for spousal maintenance from the date of separation, however, it is important to note that time limits apply. In particular, parties to a marriage should note that they have 12 months from the date the divorce becomes final to make an application. Parties to a de facto relationship must make an application within 2 years of the date of separation. There can be exceptions made if the Court is satisfied that leave not being granted to the parties to make that application would cause significant hardship.

The central principle of spousal maintenance can be summarised as a payment, ‘from those who can to those in need.’ The Family Court of WA assesses whether the spouse or payer has the financial ability to support the other spouse or payee. The Court also must assess whether the payee is able to support himself or herself themselves.

In order for the Court to assess the payee’s ability to support themselves from their own funds (this does not include any allowances, benefits or pensions that party receives), the test is, “whether by reason of earning capacity, by reason of capital or other resources which have accrued independently to the applicant, the applicant is in a position to support herself [themselves]” (Nygh J in Eliades (1981) FLC 91-022).

Spousal maintenance payments can cease when one of the following occurs:

1. when the Court ordered time expires, or a date set by the court arrives;
   2. when one of the parties dies; or
   3. when the party receiving spousal maintenance re-marries.

It is important to note that the Family Court assesses spousal maintenance on a case by case basis.

If you require any advice regarding your spousal maintenance claim, please book in for an initial consultation.

This article was written by Hayley Ellison, Family & Divorce Lawyer at Culshaw Miller Lawyers Perth.