Test For Spousal Maintenance

The provisions for spousal maintenance are set out in ss 72, 74 and 75(2) of the Family Law Act 1975. Section 72 creates the right to spousal maintenance and provides that a party to a marriage is liable to maintain the other party.

The test for spousal maintenance or the “threshold test” can be divided as follows:

• The applicant is unable to support himself or herself adequately; and
• The respondent has the ability to pay the spousal maintenance for the applicant.

The applicant has to establish his or her inability to maintain himself or herself adequately arises from one of the following:

• By reason of having the care and control of a child of the marriage who has not attained the age of 18;
• By reason of age, physical or mental incapacity for appropriate gainful employment; or
• For any other adequate reason.

The burden of proof to establish the claim for spousal maintenance lies with the applicant and the standard of proof is on the balance of probabilities.

The need for spousal maintenance can be established by providing to the court, the average weekly income and expenses of the applicant. The person against whom a claim is made will then file documents to show that he or she does not have the ability to pay the spousal maintenance claimed.

When exercising its powers, the court is required to disregard the applicant’s entitlement to any income tested pension, allowance or benefit. Therefore, when the court is determining whether the applicant can support himself or herself adequately, it will not take into account the Centrelink benefits received by the applicant.

If you require specific advice about spousal maintenance, please contact Armstrong Legal.