Now we have separated, do I still need to financially support my spouse? 

Written by Ashlee Wachtel

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A common question that we get asked as family lawyers is what, if any, ongoing financial support is required to be paid for a spouse’s benefit following separation. The answer to this question is a two stepped process: 

Step 1:  Does one spouse following separation have a ‘need’ for support (i.e. are they unable to meet their own expenses from their own income) 

If the answer to step 1 is ‘No’, there is no requirement to provide ongoing financial support to your spouse; but 

If the answer to step 1 is ‘Yes’, then you must move to step 2 and consider: 

Step 2: Does the other spouse have a capacity to provide support to the spouse in need? 

If the answer to step 1 and step 2 is ‘Yes’ then there is a requirement for the spouse that has the financial capacity to, to support the spouse in need. This is known as spousal maintenance. 

Spousal maintenance payments are generally confined to a specific amount payable on a weekly or monthly basis. The amount payable will be determined based on the spouse’s need and the capacity of the spouse providing the support. A spouse’s ‘need’ is determined by taking into account a number of different factors, including: 

  1. The age and state of health of the spouse; 
  1. The income of the spouse and their capacity for appropriate gainful employment; 
  1. Whether the spouse has care of child/ren; and 
  1. A standard of living which in all the circumstances is reasonable. 

There is no set period of time that spousal maintenance will go for. Spousal maintenance is usually a shorter term payment which is made to enable the spouse in need to get back into a position whereby they can financially support themselves. In some circumstances spousal maintenance can be ongoing for longer periods of time, or event permanent. 

It is important to be aware that there are time limits with respect to spousal maintenance applications. Married spouses have up until 12 months following the date of divorce to bring a claim for spousal maintenance and de facto spouses have 2 years from the date of separation. Finalising your property settlement does not finalise a claim for spousal maintenance. It is therefore important that you receive advice on the potential of spousal maintenance claims at the same time as formalising your property settlement.