Spousal maintenance: Are you entitled to it and how does it work?

If you’re separating or have recently separated from your partner, one of the biggest concerns flowing through your mind right now might be — how am I going to support myself financially? 

It’s not uncommon in relationships for one person to be the primary income earner and for the other to be the primary caregiver for the children.  

So, what does that mean when it comes to separation? Often, one person has a much higher income than the other, and one party may be unable to support themselves or meet their expenses on their income alone. 

The good news is, the law takes this into account through the payment of spousal maintenance. 

How does Spousal Maintenance work?

Spousal maintenance is considered when one party’s income does not meet the full extent of their expenses. Whether or not the payment of spousal maintenance is possible also depends on the other party’s capacity to pay spousal maintenance. 

It’s also important to keep in mind that spousal maintenance rarely continues indefinitely or for a lengthy period of time. 

Spousal maintenance usually works as a stop gap until such time as the party receiving the spousal maintenance is able to support themselves. Some examples of when spousal maintenance can be paid are:

• Until such that a cash payment is able to be made as part of a final property settlement;
• For a period of time to provide a party with enough time to re-train and gain new employment; 
• If both parties have agreed that children will not attend day-care or child care until starting school, then until such time as children begin school, then the primary caregiver can start to look for work as they no longer have full time care of the kids. 

How much can I receive or pay in spousal maintenance?

The payment of spousal maintenance is dependent on two things:

1. One party’s need for spousal maintenance. 
   
   This is granted when your expenses are greater than your income. Your need for spousal maintenance is then assessed as the difference between your income and your expenses. The payment amount is allocated based on the shortfall that is needed to meet the payment of your expenses.
2. The other party’s capacity to pay spousal maintenance. 
   
   This is when  your income is greater than your expenses. Your capacity to pay spousal maintenance is assessed as to the difference between your income and expenses, so essentially the money that you have available to meet the payment of spousal maintenance.

It’s important to note that no matter how large a person’s capacity to pay spousal maintenance is, the payment of spousal maintenance will never be for an amount more than a person’s need.  

Spousal maintenance is a concept designed purely to ensure that each party’s expenses are paid and they are not in a position that they are unable to support themselves.  

Spousal maintenance does not extend to making payments more than is required for a party to support themselves.

This isn’t to say that this is not a relevant factor that is taken into account in a different way, such as when we are assessing the final distribution of the property pool.  

However, when we’re assessing a person’s capacity to pay spousal maintenance, this is limited to determining whether they are able to pay the full amount of spousal maintenance needed, or whether the payment of spousal maintenance has to be for a lower amount. 

I know, this all probably sounds kind of confusing. It’s a difficult concept to get your head around, and an even trickier one to calculate. 

Working out your need for spousal maintenance

The first step when considering spousal maintenance is to consider whether there is a need for it.  

To overcome this step, the person asking for spousal maintenance is asked to complete a budget of all of the expenses they pay for their day to day living costs.  This includes everything that may be paid by them. For example:

• Rent or mortgage payments;
• Insurances, body corporate, rates, water, electricity and gas payments;
• Internet;
• Home phone or mobile phone costs;
• Vehicle costs – car insurance, registration, petrol etc;
• Costs for grocery shopping and food;
• Clothing and other necessary personal items;
• Medical and dental costs;
• Entertainment, such as coffees, lunches, take-away and restaurants;
• Public transport;
• Children’s costs, such as babysitting, childcare, extra-curricular activities, school costs, school uniforms, clothes, toys, and any other items. 

We then ask the person requesting spousal maintenance to calculate the full amount of the income they are receiving from all sources.  This includes:

• Income from paid employment;
• Centrelink payments; 
• Child support payments;
• Rental payments they may be receiving;
• Dividends from shares or any other investments. 

Once we have both of these figures, we calculate the average weekly expenses and the average weekly income received.  If there is a shortfall between these two figures, then this constitutes a need for spousal maintenance. 

For example, if your weekly expenses are $1,000, however your weekly income is $600, then this means you have a need for spousal maintenance at an amount of $400 per week. 

Working out your Ex’s capacity to pay spousal maintenance

To work out someone’s capacity to pay spousal maintenance, we ask them to go through the exact same process as the above to work out their expenses and their income. 

If there is surplus between the income and expenses, this then indicates that a party has the capacity to pay spousal maintenance. 

For example, if a party’s weekly expenses are $1,000, however their weekly income is $1,600, they have the capacity to pay spousal maintenance of up to $600.  

It is important to note that if the other party’s need for spousal maintenance is only $400, then the correct amount of spousal maintenance to be paid is the amount of $400, not $600. This is because a party can only request payment of the exact amount of their need to meet their expenses. 

If, for example, a party’s weekly expenses are $1,000, however their weekly income is $1,200, this means that their capacity to pay spousal maintenance is $200 per week. 

Even if the other party’s need for spousal maintenance is $400 a week, a person can only be asked to pay the amount that they will have available to them after the payment of their own expenses.  

As such, in these circumstances, spousal maintenance could only be requested at the amount of $200, which is the person’s capacity to pay spousal maintenance. 

Got it? Probably not! And that’s okay — this area of the law isn’t clear-cut. There’s a lot of moving parts and contingencies that can determine and affect payment. 

If you’re having trouble working out whether you’re entitled to this payment, or how to talk to your Ex about receiving spousal maintenance, book a free 30-minute CLARITY CALL with our team today.  

***Disclaimer***

This article is for general information purposes only and does not constitute legal advice or any other professional advice.