Who can apply for spousal maintenance?
A party to a marriage can apply for spousal maintenance, even if the marriage has been dissolved or is void (sections 71 and 72 FLA).
From whom can spousal maintenance be claimed?
Spousal maintenance can be claimed from the other party to the marriage (section 72 of the FLA).
How can a spousal maintenance order be changed?
A court can vary a spousal maintenance order in further proceedings between the parties about spousal maintenance (section 83 FLA).
When does a spousal maintenance order end?
Section 82 of the Family Law Act provides that a spousal maintenance order ends:
- when the payee dies;
- if the payee remarries (unless the court orders that payments should continue because of special circumstances); and
- when the payer dies (unless the court made an order for lifetime maintenance before 1983).
A spousal maintenance order typically has a clause similar to:
‘The husband is to pay the wife maintenance for herself in the sum of $75 per week’.
De Facto And Same Sex couples
Who can apply?
From 1 March 2009 a party to a de facto relationship that has broken down can apply for maintenance (section 90SE FLA). A court can only make an order if satisfied that at least one of the following conditions exists (section 90SB FLA):
- the relationship was of at least two years duration, or
- there is a child of the relationship, or
- the applicant made substantial contributions to the relationship and a failure to make the order would result in serious injustice to the applicant, or
- that the relationship is or was registered under a prescribed law of a State or Territory.
Party to a de facto relationship
A person is in a de facto relationship with another person if (section 4AA FLA):
- the persons are not legally married to each other; and
- the persons are not related by family; and
- having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
This definition of de facto relationship includes relationships between two persons of different sexes and relationships between two persons of the same sex (section 4AA(5) FLA).
From whom can de facto maintenance be claimed?
De facto maintenance can be claimed from the other party to the de facto relationship (section 90SF of the FLA). Under section 90SS of the FLA a court can make various orders regarding maintenance including orders for lump sum payments, transfer of property and periodic payments. It is only orders for periodic payments (section 90SS(1)(b) FLA) that can be registered for enforcement by CSA.
How can a de facto maintenance order be changed?
A court can vary a de facto maintenance order in further proceedings between the parties about de facto maintenance (section 90SI FLA).
When does a de facto maintenance order end?
Section 90SJ of the Family Law Act provides that a de facto maintenance order ends:
- when the payee (i.e. the party entitled to receive the maintenance) dies; or
- if the payee marries, (unless a court orders that payments should continue because of special circumstances) or
- when the payer dies.
Disclaimer: This fact sheet provides general information and does not provide legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to a court.