If you’re getting a divorce, you may be eligible for spousal maintenance. Here’s our helpful guide on how to get spousal maintenance if you’re getting a divorce in Western Australia.
Step 1 – Reach An Agreement
Whether you divorce through mediation or litigation, spousal maintenance can form part of your Consent Order or the Binding Financial Agreement. If it did, but your spouse is now failing to meet their obligation, your first option would be to try the easier and less costly route of talking to them and hopefully reaching agreement, thus avoiding a lengthy and stressful Court procedure.
Step 2 – Consult A Family Lawyer
If talking to your ex-spouse has failed to produce results, your next option would be to consult a family lawyer. If you’re still in the process of divorcing, you may be wondering whether you’re entitled to apply for spousal maintenance.
This is an extremely complicated matter and there are numerous factors that need to be considered. It therefore makes good sense to obtain sound legal advice from a professional family lawyer, before you apply. They are best placed to help you work out whether you’re entitled to spousal maintenance and, if so, estimate the amount for which you may be able to apply.
Step 3 – File An Application With The Family Court of WA
Under Australian family law, spousal maintenance can only paid to an ex-partner or ex-spouse who is unable to reasonably sustain themselves financially.
One would need to file an application with the Family Court of WA and provide sufficient evidence that this indeed is the case. The application would need to include a financial statement of all incomes and expenses from both parties (separately or jointly) alongside the final financial agreement or property settlement.
Factors The Court Will Consider
Apart from the applicant being unable to sustain themselves, there are numerous other factors the Court will consider before approving spousal maintenance.
These can include being unable to find work and whether the relationship has affected their ability to work, health reasons, any possible financial agreement or property settlement, the duration of the relationship, the care for children born out of the relationship, and last but not least, the payer’s earning capacity and ability to pay the maintenance.
However, don’t expect to receive spousal maintenance if you have remarried or entered into a de facto relationship with someone else.
When Will Payments Be Made?
Payments can only commence once the Court reaches a decision and approves the application and sets the amount, or if your ex agrees to make payments to you. The Court may also consider whether the applicant may be in urgent need of financial assistance and may grant interim spousal maintenance payments before it reaches its final decision.
Thereafter, payments can be paid, weekly, monthly or as a once-off lump sum as agreed by both parties and an agreement can also include the use of a home or vehicle, or covering other household expenses.
How Long Will Payments Continue?
How long spousal maintenance payments will continue may depend on the terms of your mutually agreed Binding Financial Agreement. They could continue to be paid for an indefinite period, or they could end at a specific date, as prescribed by the Family Court.
It is quite common for spousal maintenance to cease when the receiver has either remarried or entered into a de facto relationship.
Are There Time Limits on Applying for Spousal Maintenance?
For married couples, an application has to be lodged within 12 months from the date of the divorce, while de facto couples have 24 months from the date of separation to lodge their application.
Courts may consider granting more time on rare occasions, if the applicant can prove special grounds.
Can My Ex Dispute My Application for Spousal Maintenance?
Absolutely. Just as the receiver has the right to apply for spousal maintenance, the payer also has the right to dispute it. They would also have to file their own application to the Family Court, providing all the relevant information, including a financial statement of income and expenses.
Would you like to talk to a family lawyer in Perth who understands the ins and outs of spousal maintenance payments?
Did you know that here at Hickman Family Lawyers we offer a free 15-minute phone consultation to help you understand your options when it comes to the circumstances of your divorce? Book your free call with one of our experienced and friendly family lawyers in Perth now.
