When a marriage or de facto relationship breaks down, most couples recognize they need to make arrangements to divide their property fairly and make provision for child support for their children. But few people seem to give much thought to the issue of spousal maintenance.
Spousal maintenance is the right of a person following a separation to seek assistance with their ongoing living expenses from their former partner. It is different from child support which relates only to their children’s expenses. It can be in the form of a lump sum payment or a weekly or monthly payment, for a specified period or can continue indefinitely.
The right to spousal maintenance can be very valuable. It is an entitlement under the Family Law Act, if one spouse is unable to support themselves adequately and the other has the income and means to provide assistance. The standard of living the couple enjoyed prior to separation is a relevant factor in determining what amount of maintenance is adequate in the circumstances.
Given this, you might be surprised to hear that, according to a major study in 1999, as few as 5% of separating couples made any provision at all for spousal maintenance and when they did, it was for minimal amounts and for short periods of time. Family Law at that time only dealt with marriages. Now practically the same entitlements apply for de facto and single sex relationships. But it is unlikely that percentages of maintenance orders have increased for anyone since1999.
Why is this so? We can only wonder. Certainly spousal maintenance can be difficult to negotiate and court applications to obtain a spousal maintenance order can be difficult and costly.
There does appear to be an opposition to it in the community. The opinion of many seems to be that the separating couple should work and look after themselves following the property settlement and not look for ongoing support from their former partners. Many potential recipients seem to feel it is demeaning to them to seek spousal maintenance and don’t want a source of conflict with their former partners.
However the evidence clearly indicates that women in particular often face great disadvantage and decreased living standards following a separation. This is often the case if they have been out of the workforce for a long period of time and may have great difficulty reentering it.
So separating parties should give careful thought to these issues and understand their entitlements and obligations. There can be good reasons for a person to receive ongoing support and particularly for a period of time following a separation whilst they get back on their feet and perhaps retrain to make themselves employable. In other circumstances there can be strong grounds for some ongoing support to be provided so that both parties can maintain a reasonable living standard. Agreements on spousal maintenance can be concluded quickly and with finality by made of Financial Agreements. If necessary, a person can effectively pursue their spousal maintenance entitlements in court if they go about it in the right way. It is an issue which many separating couples should consider and discuss and come to a sensible and fair agreement with each other.