A question we hear time and again here at Hickman Family Lawyers is ‘can my ex claim spousal maintenance?’.
Here’s what our spousal maintenance lawyers in Perth say you need to know about spousal maintenance claims.
Can My Ex Claim Spousal Maintenance?
Although there is no automatic entitlement to spousal maintenance, most people may not be aware that under Australian Family Law, both spouses can be legally obliged to support each other as far as possible, during and after a divorce or separation.
So, the quick answer would be yes, but your ex would need to provide strong and valid reasons to do so.
Common Reasons To Claim Spousal Maintenance
The most common reason for your ex to claim spousal maintenance is usually that they are unable to financially sustain themselves, on a temporary or possibly permanent basis.
If you already have a Binding Financial Agreement drawn up, the terms of the spousal maintenance would have been included and things would be a lot simpler.
But if no such agreement exists, determining whether your ex can claim spousal maintenance and, if so, calculating the amount and timeframe terms, can become an extremely complicated matter.
Other common reasons can include:
- Where there is an imbalance in income earning capacities.
- Where one person does not have an income at all after separation.
- Where one person has the primary care of the children which makes it hard for them to work and earn an income.
- If one person has an illness, disability or any characteristic that makes it more difficult for them to work.
Each relationship comes with its own unique set of circumstances and are all treated on their own merits. There are however, certain criteria that must also be considered, when claiming spousal maintenance, and these would include:
- The duration of the relationship.
- The individual contributions to the relationship, both financial and non-financial, made by each spouse.
- The applicant’s health, age and needs.
- The applicant’s ability to earn.
- The payer’s ability to pay.
The fault of the breakdown, as with all divorces and separations in Australia, is not taken into account.
What Constitutes Unreasonable Claims For Spousal Maintenance?
When it comes to spousal maintenance claims, there have to be valid reasons and circumstances to make the claim initially.
When it comes to amounts one is able to claim, there is no set formula to calculate spousal maintenance as each case is different.
What’s important to note is that the paying party is under no obligation to keep their ex-spouse in their pre-separation lifestyle, even if they can afford to do so, although pre-separation lifestyle is taken into account.
The Courts will allow what they deem to be “Reasonable Living Expenses”. This, however, does not mean living on a subsistence level either, but strive to achieve a standard of living that is reasonable to the circumstances of each case.
Courts also have the powers to increase, decrease, temporarily suspend or terminate spousal maintenance if either party’s financial circumstances change substantially.
Can My Ex Claim Spousal Maintenance If We Were Not Married?
Australian Family Law does not distinguish between married couples and de facto couples, including same-sex relationships. The same law applies to all relationship types.
Basically speaking, the applicant will usually have to provide clear evidence that they are unable to adequately support themselves and the other party has the means to offer them that support.
In de facto relationships, the following criteria apply:
- The parties have cohabited, as a couple, for a period not less than 2 years, or
- A child under 18 years of age is the result of the relationship, or
- The applicant has made substantial contributions, either financial or domestic, to the relationship, for example keeping home and raising their children or any other contribution.
As you can see, claiming spousal maintenance from your ex can be an extremely complex matter, which can add to the level of stress for both parties trying to go through a separation on their own. Seeking professional legal and financial advice is therefore strongly recommended.
For more about whether your ex can claim spousal maintenance, read our posts on how long spousal maintenance is paid for and how to get spousal maintenance – if you’d like to speak directly with one of our experienced family lawyers in Perth, you can book a free 15 minute phone consultation online today!
