Finances and property: Spousal maintenance

What are spousal and de facto maintenance?

Spousal maintenance

Spousal maintenance is financial support paid by a party to a marriage to their husband or wife (or former husband or wife) in circumstances where they are unable to adequately support themselves.

De facto maintenance

De facto maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.

The Court can only make a de facto maintenance order if your de facto relationship meets certain jurisdictional requirements.

When can I receive (or when do I have to pay) maintenance?

Under the Family Law Act 1975, a person has a responsibility to financially assist their spouse, or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

What does the Court consider when making a decision?

The Court considers the needs of an applicant, and the respondent's capacity to pay.

The Court considers the following about both of you:

  • your age and health
  • your income, property, and financial resources
  • your ability to work
  • what is a suitable standard of living, and
  • if the marriage has affected your ability to earn an income.

The Court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.

See sections 75 (in relation to marriages) and 90SF (in relation to de facto relationships) of the Family Law Act 1975.

Do I still receive spousal maintenance if I start a new relationship?

You are not entitled to maintenance if you marry another person unless the Court otherwise orders.  See sections 82 (in relation to spousal maintenance) and 90SJ (in relation to de facto maintenance) of the Family Law Act 1975.

If you start a new de facto relationship, the Court will take into account the financial relationship between you and your new de facto partner when considering whether you are able to support yourself adequately.

Are there time limits for applications for maintenance?

Spousal maintenance

We are not divorced

Divorce is a completely separate process to financial proceedings.

You can ask the Court to make an order for spousal maintenance even if you are not divorced. In fact, although it is uncommon, you can ask the Court to make a spousal maintenance order even if your marriage is still intact (i.e. if you and your spouse are not separated).

We are divorced

You can ask the Court to make an order for spousal maintenance after you are divorced, but you must apply within 12 months of the divorce order taking effect.

Our marriage was a nullity (we were not validly married)

If a court has made an order that your marriage was a nullity (the technical way of saying, that the marriage was void or that you were not validly married), you can still ask the Court to make an order for spousal maintenance, but you must apply within 12 months of the decree of nullity being made.

If you want to start proceedings out of time, you must ask the Court for leave.

De facto maintenance

You must apply de facto maintenance orders within two years of the breakdown of the de facto relationship. If you want to start proceedings out of time, you must ask the Court for leave.

I need maintenance

If you need an order for maintenance, see How do I apply for property and financial orders?

If you think you need a maintenance order urgently, you can apply for urgent maintenance. See sections 77 (in relation to urgent spousal maintenance) and 90SG (in relation to urgent de facto maintenance) of the Family Law Act 1975.

For information on how to apply for an urgent listing of your application, see My application is urgent.

Legal advice

You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders or applying to the Court, or if you have been served with an application.  However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.

For information on how to get legal advice, see Legal Help.

Family Law Practice Direction – Financial proceedings (FAM-FINANCIAL)