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Spousal Maintenance & De Facto Maintenance

If There is Disparity Between Income and Financial Circumstances, Maintenance Should be Considered

Maintenance

Maintenance is a legal right for payment that arises under the Family Law Act 1975 Commonwealth, either from a marital relationship or de facto relationship.  The family law in Australia recognises that in some cases, a party from a relationship is liable to maintain the other party from the relationship where the first party has the capacity to pay and where the other party is unable to support themselves adequately.​

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Eligibility rules and time limitations apply to maintenance.  You should obtain specific legal advice from our family lawyers.

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Marriages and Maintenance

If you are married you may be entitled to maintenance both during the marriage and after the break-down of the marriage.  The entitlement to seek maintenance is available up until you have been divorced for 12 months or if you have been divorced for more then 12 months if you can show hardship would be caused or if the parties otherwise consent outside of 12 months.

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De Facto Relationships and Maintenance

If your de facto relationship has come to an end, you may be entitled to maintenance where you have been in a de facto relationship for 2 or more years or there is a child of the relationship or there have been significant contributions and it would be unjust for the contribution not to be recognised or the relationship has been registered in a State or Territory.  You must also meet the geographical requirements.

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The entitlement to seek a maintenance payment from a de facto relationship is available up until you have been separated for 2 years, or if you have been separated for more than 2 years if you can show hardship would be caused or if both parties agree.

Spousal Maintenance & De Facto Maintenance
Family Law Maintenance Entitlement

When Can a Person Be Entitled to Maintenance

A person will generally be entitled to claim maintenance if:

  1. They have the care and control of a child of the relationship who is under 18;

  2. Due to their age, physical or mental incapacity for gainful employment; or

  3. For any other adequate reason.

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There are many reasons that are an adequate reason for maintenance.  As maintenance entitlements can be complex to determine, you should obtain legal advice from family lawyers like us.

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How Much Maintenance Can Be Paid?

There is no set payment amount when it comes to working out a maintenance entitlement it depends on various circumstances.  The payment should be sufficient but not excessive.  Any entitlement to maintenance depends on:

  1. The capacity of the payer to make maintenance payments based on their income, property, financial resources and capacity to earn an income; and

  2. Based on the need of the payee, to support themselves at an adequate level which depends on their circumstances. 

 

Every circumstance has to be considered specifically as there are many reasons that can show an inability for adequate self-support and many factors considered in maintenance assessments.​

How Often are Maintenance Payments Made

Maintenance payments can be:

  1. A one-off payment or periodical payments under urgent circumstances.

  2. A lump-sum payment or several lump-sum payments.

  3. A periodical payment made weekly, fortnightly, monthly or as otherwise appropriate etc.

  4. Limited to a period such as 3 months, several years or until death.

  5. For a fixed period until further consideration or changes in circumstances.

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As every circumstance is different and many factors are considered when it comes to maintenance, you should speak to family lawyers like us about your maintenance rights or obligations.

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How Can Maintenance Payments be Arranged?

There are several ways maintenance payments can be arranged which include:

  1. A voluntary non-enforceable agreement between the parties;

  2. Through a financial agreement which deals with maintenance and which is binding on both of the parties;

  3. Through an application for consent orders; or

  4. Through family law court proceedings.

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Parties to a marriage or de facto relationship should attempt to resolve maintenance rights out of court where possible. If an agreement cannot be made, the parties may need to go to court proceedings to have the matter determined by a court.

Family Law Maintenance Payments
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