List of matters considered as to whether
Spousal Maintenance is payable
You can read about when Spousal Maintenance might be payable by one spouse to their former spouse and see some examples of the most common situations when Spousal Maintenance is ordered to be paid, in our fact sheet Can I get paid Spousal Maintenance.
Main things Courts want to know re Spousal Maintenance Payment Orders
Some of the more obvious things a Court will look at when considering a Spousal Maintenance application include the following things about each of you:
- your health, any illness or disability;
- if their are children, the level of care and supervision they need;
- a suitable standard of living;
- whether the relationship has affected your ability to earn an income.
There is a specific list of things a Court must look at when deciding whether you might be liable to pay Spousal Maintenance to your former partner.
That more detailed list is itemised in section 75(2) of the Family Law Act 1975, which says that the following matters are to be considered and taken into account:
- the age and state of health of each of the spouses.
- the income, property and financial resources of each of the spouses and the physical and mental capacity of each of them for appropriate gainful employment.
- whether either spouse has the care or control of a child of the relationship who is not yet 18 years of age.
- commitments of each of the spouses that are necessary to enable them to support themselves or another person that they have a duty to maintain.
- the responsibilities of either spouse to support any other person.
- the eligibility of either spouse for a pension.
- a standard of living, reasonable in the circumstances.
- the extent to which the payment of maintenance to the spouse, would increase their earning capacity, by enabling them to undertake a course of education or training, or to establish themselves in a business or otherwise to obtain an adequate income.
- the effect of any proposed court order on the ability of a creditor of a spouse to recover the creditor's debt, so far as that is relevant.
- the extent to which the spouse applying to have maintenance paid to them has contributed to the income, earning capacity, property and financial resources of the other spouse.
- the duration of the marriage and the extent to which it has affected the earning capacity of the spouse applying to have maintenance paid to them.
- the need to protect a spouse who wishes to continue their role as a parent.
- If either spouse is cohabiting with another person—the financial circumstances relating to the cohabitation.
- the terms of any court order made (or proposed to be made) under section 79 in relation to the property of the spouses or vested bankruptcy property in relation to a bankrupt spouse;
- any child support assessed as being payable or which might be assessed as being payable in the future.
- any fact or circumstance which the justice of the case requires to be taken into account.
- the terms of any financial agreement that is binding on the spouses.
We have a lot more information about how Spousal Maintenance is calculated, who is eligible for Spousal Maintenance, when Spousal Maintenance is payable, the list of matters considered by courts when deciding if spousal maintenance is payable, time limits for applications as well as answers to frequently asked questions about Spousal Maintenance in our other fact sheets you can click on below.
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Michelle Beatty, Senior Lawyer
Other Questions answered in the Spousal Maintenance Section
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