I want to separate but I can't afford to...
Posted on 20 September 2022
I want to separate but I can’t afford it. My partner/ husband has been the income earner and I have cared for the children!
The Family Law Act 1975 sets out that a person has a responsibility to financially assist their spouse, or defacto partner if that person is not able to meet their own reasonable expenses from their personal income or assets.
Spousal Maintenance
When one party to a marriage is unable to adequately support themselves, their husband or wife (or former husband or wife) is required to pay them financial support, known as Spousal Maintenance.
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 not able to adequately support themselves.
When the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation continues even after separation and divorce. The extent of the support required to be paid depends on what the other party is able to afford.
Considerations
The Court considers the need of an applicant, and the capacity of the respondent to be able to ‘maintain’ the other party. The court will consider several factors, including:
- Age and health of the parties;
- The income, property and financial resources of the parties;
- The ability of each party to work;
- What is a suitable standard of living;
- If the marriage/ relationship has affected the parties ability to earn an income; and
- With whom the children (under the age of 18 years, or who has a disability) live.
Time limits
Just as when you are doing a property settlement with your ex-spouse (as discussed here), you have the same time limitation to file an application for spousal or de facto maintenance, that is twelve (12) months from the date of divorce order taking effect.
De facto maintenance must be applied for before the expiry of the two (2) years since the date of separation time limit, which also applies for property settlements.
In order to start proceedings out of the above time limit, leave of the court must be sought.
Urgency
If you believe you need an urgent maintenance order, you can apply for your application to be listed as urgent, a cover letter and affidavit seeking the interlocutory order that the matter is listed as urgent is required.
Spousal Maintenance applications, just as property settlement applications are complex. If you need assistance with your Family Law property matter, get in contact to schedule your free initial phone consult, to see how our friendly and experienced team at Omnia Legal are able to assist you.
This article provides general information on legal topics for educational purposes only, and should not be considered legal advice or recommendations. While we have taken care to ensure accuracy, Omnia Legal is not responsible for any errors, and makes no guarantees about the accuracy or completeness of the information. Links to third-party websites do not constitute an endorsement, and we are not liable for any damages that may result from using inaccurate or incomplete information. It's always best to seek legal advice for specific situations.