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Eligibility for spousal maintenance (alimony)

While American TV shows refer to it as "alimony", in Australia we use the phrase "spousal maintenance" to describe the financial support that one spouse or partner is ordered by a court to give to their spouse after separation or divorce. Spousal maintenance falls under Part VIII of the Family Law Act (primarily sections 72-77) and applies to both marriages and defacto relationships that have broken down.

The Family Law Act provides that a person will be found liable to financially assist their former spouse (or former de facto partner) if that person is not able to meet their own reasonable expenses from their own income or assets. In order to convince the family law court to make an order in your favour for spousal maintenance, two things must be established:

  • You are unable to meet your own expenses
  • The other party has the capacity to pay spousal maintenance

Spousal maintenance orders can be made for periodic payments (for example, ongoing weekly or fortnightly payments) or as lump sum spousal maintenance (a more significant one off payment).

What does the court consider for spousal maintenance?

Whilst the fundamental questions are the needs of an applicant, and the respondent's capacity to pay, the court considers a number of factors when considering a spousal maintenance application, including.

  • age and health
  • income, property, and financial resources
  • ability to work
  • a suitable standard of living
  • whether the separation has affected the ability to earn an income
  • which party the children live with.

There are time limits that apply to making a spousal maintenance application (just as there are for family law property settlements more generally). Although there are potential exceptions, you must generally file a spousal maintenance application within 12 months of divorce for married couples, or within 2 years of separation for defacto relationships. In some limited circumstances, the family law court will grant leave to file spousal maintenance applications out of time.

In order to obtain a family law spousal maintenance order, it is important to obtain legal advice from a competent family law solicitor. An Initiating Application seeking a spousal maintenance order will need to be filed with the Federal Circuit and Family Court of Australia. A supporting affidavit will need to be filed along with the Initiating Application, along with a number of other documents. An affidavit is a sworn document containing the evidence that you will rely on in making your application for a spousal maintenance order.

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