In circumstances where you are unable to support yourself adequately (and that does not mean that you are destitute or even that you are in need), and your spouse is able to support him or herself with extra money and resources available, your spouse can be ordered to pay a periodic or one lump sum amount for your support.
The Court’s power to award spousal maintenance applies to married and de facto spouses.
There are 3 types of Spousal Maintenance Orders:
- A Spousal Maintenance Order can be for Urgent Maintenance (by urgent it is meant before the case is properly put before the Court and before all proper evidence is available). In such circumstances the Court will take a pragmatic approach in order to alleviate hardship.
- An Interim Spousal Maintenance Order is made in a situation when all of the proper evidence is available and has been filed with the Court. An Interim Order is a temporary order and will last until the final resolution of the proceedings.
- The third type of Order that can be made is a Final Order for maintenance. A Final Order for spousal maintenance can be a considerable burden for many years to come. A Spousal Maintenance Order ceases to have effect upon: The death of either party; or
The remarriage of the party awarded the maintenance (unless there are special circumstances which would persuade the Court to end the Maintenance Order earlier).
In order to succeed in a spousal maintenance claim you must satisfy the Court that:
- The Payer is reasonable able to pay; and
- That you are unable to support yourself adequately by reason of: Having the care and control of a child of the marriage who has not attained the age of 18 years; or
- Your age or physical and mental incapacity for appropriate and gainful employment; or
- For any other adequate reasons.
The deadline for making a claim for spousal maintenance is 12 months after the date of a Divorce Order.
- The deadline for making a claim for spousal maintenance for a party to a de facto relationship is 2 years after the date of the end of the relationship.
Protective Measures: It is possible, but only by means of a Binding Financial Agreement, to oust the Court’s power to make a Spousal Maintenance Order, which is very often a sensible option for high income earners.
If you would like to know more, please contact us at Madsen Law.