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Spousal Maintenance Lawyers

We Provide Legal Advice and Representation Around all Aspects of Spousal Maintenance

The two questions the court asks

Spousal maintenance is financial support paid by one former partner to the other after separation. It is not automatic, it is not a penalty, and it has nothing to do with who caused the relationship to end. The Family Law Act sets a two-part test, and both parts must be satisfied.

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First, need. Is the person applying unable to support themselves adequately? The Act recognises several reasons this may be so: because they have the care of a child of the relationship under eighteen, because of their age or physical or mental incapacity for gainful employment, or for any other adequate reason.

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Second, capacity. Is the other person reasonably able to pay, after meeting their own reasonable expenses? A genuine inability to pay is a complete answer, no matter how great the other person's need.

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If both limbs are met, the court then works out how much and for how long, taking into account the same range of factors that apply to property settlement: age and health, income, property and financial resources, care of children, the standard of living during the relationship, and the effect of the relationship on each person's earning capacity.

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It is not child support

These two are constantly confused. Child support is money for the children, assessed administratively by Services Australia under a statutory formula based on both parents' incomes and the care arrangements. Spousal maintenance is money for the adult, decided by the court under the Family Law Act on the two-part test above.

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They are separate. You can be entitled to one and not the other, and receiving child support does not prevent a spousal maintenance claim, although the child support being paid is relevant to what each person can afford.

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De facto partners can claim too

Separating de facto partners can apply for what the Act calls de facto partner maintenance. The test is the same. The difference is the time limit and the gateway requirements that apply to de facto property and maintenance claims generally.

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Urgent and interim maintenance

Maintenance disputes often arise when one person has been left without access to money. The court can make an urgent maintenance order before the full financial picture is known, where a person is in immediate need. It can also make interim orders that operate until the matter is finally resolved.

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If you have been left without income, without access to accounts, or unable to meet the mortgage or rent, this is one of the few areas of family law where the court can act quickly. Do not wait for the property settlement to be sorted out first.

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How long it lasts, and when it stops

Maintenance can be periodic, usually weekly or monthly, or a lump sum, and it can be for a fixed period, for example while a person retrains or while children are young. Orders can be varied if circumstances change materially, and they can be discharged.

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An order for periodic maintenance ends if the receiving party remarries, unless the court orders otherwise in special circumstances. Entering a new de facto relationship does not automatically end an order, but it is highly relevant to whether the person can now support themselves adequately, and it is a common basis for applying to vary.

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Time limits

If you were married, you must apply within twelve months of your divorce order taking effect. If you were in a de facto relationship, you have two years from separation. Out of time applications need the court's permission, which is not automatic.

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Disclosure matters more here than almost anywhere

Maintenance turns entirely on income, expenses and capacity, so both sides must give full and frank financial disclosure. Since 10 June 2025 that duty is written into the Family Law Act itself. Understated income and inflated expenses are the two most common features of a contested maintenance case, and both are usually exposed once proper disclosure is ordered.

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Frequently asked questions

What is spousal maintenance?

Financial support paid by one former partner to the other after separation, where one of them cannot adequately support themselves and the other has the capacity to pay. It is decided by the court under the Family Law Act and is separate from any property settlement.

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How is spousal maintenance different from child support?

Child support is money for the children, assessed by Services Australia under a formula based on both parents' incomes and the care arrangements. Spousal maintenance is money for the adult, decided by the court on a needs and capacity test. They are separate and you may be entitled to both, one, or neither.

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Am I automatically entitled to spousal maintenance?

No. There is no automatic entitlement and no formula. You must show both that you cannot support yourself adequately and that the other person can reasonably afford to pay. Many separations involve no maintenance at all because both people can support themselves.

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Can de facto partners claim maintenance?

Yes. Separating de facto partners can apply for de facto partner maintenance under the same needs and capacity test, subject to the gateway requirements and the two-year time limit that apply to de facto claims.

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How long does spousal maintenance last?

It depends on the circumstances. It may be for a fixed period, for example while someone retrains or while children are young, or ongoing. Orders can be varied or discharged if circumstances change materially, and periodic maintenance ends on the recipient's remarriage unless the court orders otherwise.

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What if my ex starts a new relationship?

Remarriage ends an order for periodic maintenance unless the court orders otherwise. A new de facto relationship does not automatically end it, but it is highly relevant to whether the person can now support themselves, and it is a common reason to apply to vary or discharge the order.

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I have been left with no money at all. What can I do?

Apply for urgent maintenance. The court can make an urgent order before the full financial position is known where someone is in immediate need. This is one of the few parts of family law where the court can move quickly, so get advice straight away rather than waiting for the property settlement.

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Talk to a Melbourne spousal maintenance lawyer

If you need support, or you have received a claim for maintenance, book a free 30-minute phone assessment, call 1800 976 214, or see us in the Melbourne CBD, on St Kilda Road, in Dandenong or in Pakenham.

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 and child custody lawyers like us.

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How Much Maintenance Can Be Paid?

Unlike property settlement, 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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Except for cases involving safety concerns, 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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