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How Long Do I Have to Keep Paying Spousal Maintenance?


We have probably all heard of spousal maintenance although it may be referred to as something else such as spousal support, alimony (if you watch a lot of US television), or just money for the wife or husband. Essentially spousal maintenance is money to assist a former spouse or partner to meet their day to day living expenses.

Section 72 (for married parties) and s 90SF ( for de facto parties) of the Family Law Act 1975 (“the Act”) set out that a person may be required to maintain their spouse/partner after they separate if:

Their spouse/partner cannot financially look after themselves due to them:

  • having the care of a child of the marriage under the age of 18; or
  • not having appropriate employment due to age or physical or mental incapacity; or
  • any other adequate reason;

AND

the person is able to assist with financially maintaining their spouse/partner after taking to account their week to week income and expenses.

If the above conditions are satisfied then a court may order for a spouse/partner to pay spousal maintenance to the other spouse/partner in a lump sum (e.g $10,000 within 30 days) or in a periodic amount (e.g $300 per week for a period of 2 years).

Do you think that a spouse/partner may have to pay spousal maintenance after the order has ended? The answer is “yes”.

Section 83 (for married parties) or s 90SI (for de facto parties) of the Act provides that if the order remains in force then a spouse/partner may seek an order to vary the original order to pay maintenance and this may include increasing the sum to be paid or the period of time of the payment. Even if the order to pay maintenance has ended then the spouse/partner that received the payment can bring another application for future spousal maintenance to be paid by their former spouse/partner.

In the decision of Atkins & Hunt [2016] FamCAFC 230 the Full Court of the Family Court of Australia had to consider an appeal by a wife against a decision dismissing her application for a continuation of her spousal maintenance to be paid to her by the husband. The Full Court made it very clear that pursuant to s 80(2) (for married parties) or s 90SS(3) (for de facto parties) of the Act the making of a previous order about spousal maintenance does not prevent the Court from making another order for maintenance. In addition, the Full Court found that the limitation period of 12 months from the date of divorce (for married parties) or 2 years from the date of separation (for de facto parties) does not apply to a matter where an order has already been made for the payment of spousal maintenance. The effect of this decision is that a spouse/partner that has been ordered to pay spousal maintenance, may potentially be required to pay maintenance for as long as they have the ability to pay and the other party has the need.

Image Credit – Kritchanut © 123RF.com

Written by Peter Magee on March 14, 2017

Peter is a partner of Armstrong Legal and head of our Family Law Division. He has over 15 years’ experience. His past experience dealing with large cases benefits his family law clients by providing insight into complex and tactical issues. As a result, Peter can often achieve settlements outside Court that may otherwise have not been achievable. View Peter’s profile


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