Spousal Maintenance

It is always better to agree on a property settlement than go to Court. However, before you make a final agreement or divide your property, we recommend you meet with our family lawyers for advice about whether the agreement is fair to you.

Our family lawyers can also assist you in formalising your agreement by obtaining Consent Orders through the Family Court. This will make your agreement legally binding and protect each of you from further property claims. You and your partner will not have to attend Court to have the Orders made.

No, we have a no fault family law system in Australia. This means that the Family Court is not concerned with why the relationship ended when it makes decisions.

Inheritances are usually treated by the Court as an extra contribution by the person who received the inheritance. Whether the other person will share in your inheritance will depend on a number of factors, including when the inheritance was received, how much the inheritance was, what other assets there are and what future needs you and the other person have. When our family lawyers meet with you they can advise you how the inheritance is likely to be treated in your particular situation.

No, you can finalise your property settlement any time after you separate – you do not need to wait until you are divorced.

If you have not finalised your property settlement by the time of your divorce, you need to do so within 12 months of your divorce. This is because there is a time limit of 12 months to start Court proceedings after you are divorced. The Court can give permission to start Court proceedings after this 12 month period in limited circumstances, but you should not assume that permission will automatically be granted.

Yes, but in Australia it is called "spousal maintenance" for married couples or "maintenance" for de facto couples.

Spousal maintenance is an ongoing periodic or lump sum payment from one spouse to the other spouse for living expenses. You might have heard maintenance being referred to in American television shows as 'alimony'. It is separate from child support which is paid for children's expenses.

Unlike child support, there is no automatic entitlement to spousal maintenance. Spousal maintenance is paid only by agreement or by Court Order. To be successful in a claim for spousal maintenance, a spouse must be able to establish that:

• given their current income and income earning capacity (excluding any income tested government benefits) they are unable to meet their reasonable living expenses and
• given their spouse's income and income earning capacity, and taking into account their spouse's reasonable living expenses, their spouse can reasonably be expected to provide financial support to them.

Yes, the Court can order maintenance to be paid from one partner to another when a de facto relationship breaks down provided that:

• the de facto relationship has lasted 2 years or more or
• there is a child of the de facto relationship or
• one party made a significant contribution during the relationship and there would be injustice if the Court did not make an Order for property settlement or
• the de facto relationship is or was registered under a law of a State or Territory.

The person seeking maintenance must also satisfy the Court that:

• given their current income and income earning capacity (excluding any income tested government benefits) they are unable to meet their reasonable living expenses and
• given their former de facto partner's income and income earning capacity, and taking into account their former de facto partner's reasonable living expenses, their former de facto partner can reasonably be expected to provide financial support to them.