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GJA Law – Sydney’s Trusted Spousal Maintenance Lawyers

Spousal Maintenance in Sydney

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When a marriage or de facto relationship ends, the financial impacts can be profound and long-lasting. While property settlement divides existing assets, it does not always address an ongoing disparity in future earning capacity. This is where spousal maintenance becomes a critical legal consideration.

At GJA Law, we provide clear, strategic advice to individuals in Sydney navigating the complex and often sensitive issue of spousal maintenance, ensuring that financial support is structured fairly and in accordance with the law.

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    What Is Spousal Maintenance?

    Spousal maintenance is a periodic or lump-sum financial payment made by one former partner (the payer) to the other (the applicant) following separation. Its purpose is not to punish or equalise lifestyles, but to address a fundamental need where one party is unable to meet their own reasonable living expenses. Governed by the Family Law Act 1975 (Cth), spousal maintenance is a separate legal right from property settlement or child support. It is based on the principle that both parties have a legal responsibility to support each other financially, provided certain conditions are met, and that this responsibility can continue after the relationship ends.

    A crucial distinction must be made: spousal maintenance is not an automatic entitlement. It is a need-based claim, assessed on specific, objective criteria. It is also distinct from the informal financial support one party might voluntarily provide; it is a legally enforceable obligation ordered by a court or established in a binding agreement.

    • Fantastic service. Always honest and clear in the advice being given. I have recommended others to GJA and will continue to do so.

      Rachel


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    Who Can Apply for Spousal Maintenance?

    To be eligible to apply for spousal maintenance, an applicant must first establish their status as an eligible party. This includes:

    • A party to a legally married marriage (either before or after divorce, subject to time limits).
    • A party to a qualifying de facto relationship (generally of at least two years’ duration, or involving a child or significant contributions).

    Beyond eligibility, the applicant must then satisfy the court of two fundamental thresholds:

    1. Inability to Adequately Support Themselves: The applicant must demonstrate they cannot meet their own reasonable needs. This could be due to factors such as age, physical or mental health, the need to care for a child of the relationship, or an absence from the workforce that has eroded their earning capacity.
    2. The Other Party’s Capacity to Pay: The respondent (payer) must be shown to have the financial capacity to provide support after meeting their own reasonable needs. A high income or substantial assets alone are not sufficient if, after meeting their own obligations, no surplus exists.

    Both tests must be met. If the applicant can support themselves adequately, or if the payer has no capacity to pay, no order will be made.

    How Courts Decide Spousal Maintenance

    If the eligibility and threshold tests are satisfied, the court exercises broad discretion to determine the amount and duration of maintenance, considering “what is proper” in all the circumstances. Key factors include:

    • The Age and State of Health of Both Parties: A chronic illness or disability affecting employability is highly relevant.
    • Income, Property, and Financial Resources: This includes earning capacity, not just current income. The court may “impute” an income if it finds a party is deliberately under-employed.
    • The Duration of the Relationship: Longer relationships, where one party may have foregone career development for decades, often give rise to stronger claims.
    • The Applicant’s Role as Homemaker and Parent: The court recognises the economic disadvantage suffered by a primary caregiver who has been out of the workforce.
    • A Suitable Standard of Living: While not a guarantee of the marital standard, the court considers the standard of living during the relationship as a benchmark for “reasonable” needs.
    • The Effect of Any New Relationship: Cohabitation with a new partner does not automatically extinguish a claim but will be considered as it affects financial need and support.

    The court’s aim is not to create lifelong dependency but to provide support that is appropriate and, where possible, rehabilitative—allowing the recipient time to retrain or re-enter the workforce.

    Types of Spousal Maintenance Orders

    A court can order maintenance in several forms:

    • Periodic Payments: Regular payments (e.g., weekly, monthly) for a specified period or indefinitely. This is the most common form and is subject to variation if circumstances change.
    • Lump-Sum Payment: A one-time capital payment, often drawn from the payer’s share of the property settlement. This provides finality and clean-break, ending all future maintenance obligations.
    • Payment of Specific Expenses: An order for the payer to directly pay certain bills or expenses, such as mortgage repayments, rent, or private health insurance premiums.

    The choice of type depends on the payer’s capacity (e.g., a lump sum requires available capital), the nature of the applicant’s need, and the desire for finality.

    Spousal Maintenance and Property Settlement

    Spousal maintenance and property settlement are intrinsically linked and must be considered together. A comprehensive financial resolution will address both. Important interactions include:

    • Property as a Source of Maintenance: A party’s property settlement can affect their need for maintenance (if it generates income) or their capacity to pay it.
    • “Lumping” Maintenance with Property: A larger property settlement can be negotiated in lieu of any future spousal maintenance, known as a “clean break.” This is often desirable for both parties.
    • Time Limits: An application for spousal maintenance must be filed within 12 months of a divorce becoming final (for married couples) or 2 years of the end of a de facto relationship. Applications outside this time require difficult-to-obtain court permission. Notably, finalising a property settlement does not automatically extinguish future spousal maintenance rights unless expressly agreed.

    Changing or Ending Spousal Maintenance

    An order for periodic spousal maintenance is not necessarily permanent. It can be varied or terminated by a court if there is a significant change in circumstances. This could include:

    • The applicant cohabiting with a new partner.
    • A substantial increase or decrease in either party’s income.
    • The applicant successfully retraining and gaining employment.
    • The payer retiring or suffering a financial setback.
      Maintenance also ends upon the death of either party or the remarriage of the applicant (unless the order specifies otherwise).

    Spousal Maintenance Agreements

    To avoid the cost and uncertainty of court proceedings, parties can enter into a private agreement. For it to be legally binding and oust the court’s jurisdiction, it must be formalised as one of two types:

    1. Binding Financial Agreement (BFA): A standalone BFA, or a BFA that includes spousal maintenance provisions alongside property settlement, can specify maintenance terms. It requires independent legal advice for both parties and strict compliance with the Family Law Act to be enforceable. This type of agreement can provide for a clean break (zero maintenance) or set specific payments.
    2. Consent Orders: Parties can apply to the court for Consent Orders that record their agreed maintenance terms. Once approved and made by the court, these orders have the same force as if a judge decided them after a trial. This is a common and secure method of formalising an agreement.

    Informal agreements, while better than nothing, are not legally enforceable under the Family Law Act and leave a party vulnerable to a future court application.

    Our Services

    GJA Law assists Sydney clients with a wide range of Spousal Maintenance matters, including:

    • Preparing or reviewing documents
    • Explaining rights and obligations
    • Resolving disputes through negotiation
    • Collaborating with advisers as needed
    • Ensuring timely and accurate completion

    • Dealing with GJA was a great experience. I felt comfortable at all times with their advice. My situation and the process was explained in laymans terms. As a result they won the case for me.

      Nick

    Why Choose GJA Law?

    • Guidance you can trust
    • Predictable and transparent pricing
    • Decades of combined legal experience
    • Technology to streamline your matter
    • A client service ethos built on results

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    Contact Us

    If you are dealing with Spousal Maintenance in Sydney, contact GJA Law today. Our experienced lawyers will guide you through the process with confidence and provide the support you need.

    Common Spousal Maintenance FAQs

    What is spousal maintenance and how is it different from property settlement?

    Spousal maintenance is financial support paid by one former partner to the other when one party cannot meet their reasonable living expenses after separation. It is different from property settlement, which deals with dividing existing assets and liabilities. Maintenance looks forward, addressing income disparity and future need, whereas property settlement looks backward at what has been accumulated during the relationship.

    Is spousal maintenance automatically payable after separation?

    No. Spousal maintenance is not automatic. An applicant must show that they cannot adequately support themselves and that the other party has the financial capacity to provide support. If either of these elements is missing, no maintenance will be ordered. Many separations do not result in spousal maintenance obligations at all.

    How does the court decide the amount and duration of maintenance?

    The court considers a wide range of factors, including each party’s income, health, age, earning capacity, care of children, and the length of the relationship. The aim is to determine what is reasonable and fair in the circumstances. Maintenance may be ordered for a limited period to assist with retraining or workforce re-entry, rather than on an indefinite basis.

    Can spousal maintenance be paid as a lump sum instead of regular payments?

    Yes. Spousal maintenance can be paid as periodic payments, a lump sum, or by covering specific expenses such as rent or mortgage repayments. Lump-sum maintenance is often negotiated as part of a broader property settlement to achieve a “clean break,” bringing finality and avoiding ongoing financial ties between former partners.

    Can spousal maintenance orders be changed or stopped?

    Yes. Periodic spousal maintenance orders can be varied or ended if there is a significant change in circumstances, such as a change in income, health, employment, or a new relationship. Maintenance obligations also usually end if the recipient remarries or if either party dies. Lump-sum maintenance, once paid, generally cannot be revisited.

    How can spousal maintenance be finalised without going to court?

    Spousal maintenance can be resolved by agreement and formalised through Consent Orders or a Binding Financial Agreement. These options allow parties to avoid litigation while still creating legally enforceable outcomes. Independent legal advice is essential to ensure agreements are valid, fair, and protect against future claims.

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