When a relationship ends, one person may be worried about how they will pay rent, mortgage repayments, medical costs or ordinary living expenses before the financial settlement is resolved.
The quick answer is that spousal maintenance and de facto partner maintenance are not automatic. A person must usually show that they cannot adequately support themselves, and that the other person has capacity to contribute after meeting their own reasonable expenses.
What maintenance means
Maintenance is financial support paid by one former partner to the other. It is separate from child support, and it is also separate from the final property settlement.
For married spouses, the starting point is Family Law Act 1975 (Cth) s 72. It provides that a party to a marriage is liable to maintain the other party only to the extent that the first party is reasonably able to do so, and where the other party is unable to support themselves adequately.
For de facto relationships, the Court’s maintenance power is in Family Law Act 1975 (Cth) s 90SE. De facto maintenance can arise after the breakdown of a de facto relationship if the legal requirements for the de facto jurisdiction are met.
The two main questions
Most maintenance disputes come back to two practical questions.
First, does the person asking for maintenance have a genuine need? The Court may look at income, expenses, health, care of children, earning capacity, available property and whether the person can reasonably support themselves.
Second, does the other person have the capacity to pay? A person is not required to pay maintenance they cannot reasonably afford. Their own living expenses, income, debts and financial responsibilities matter.
The Court can consider a broad list of factors under s 75 for married spouses and s 90SF for de facto partners. Those factors include age, health, income, property, financial resources, care of children, commitments, earning capacity and the effect of the relationship on a person’s ability to earn income.
Examples of when maintenance may be relevant
Maintenance may be relevant where one person has been out of paid work caring for children, has health issues, has limited immediate income, or cannot meet reasonable expenses while property settlement is being negotiated.
It may also arise as short-term support. For example, maintenance might be paid until the sale or transfer of a property, until a person returns to work, or until the final property settlement is completed.
Maintenance is not designed to punish one person or reward the other. It is a practical assessment of need and capacity on the evidence.
How maintenance can be paid
Maintenance can be paid periodically, as a lump sum, or in another form the Court considers appropriate. Periodic payments are often used where support is needed for regular living expenses. A lump sum may be considered where it fits with the broader financial settlement.
Orders can also be interim or final. Interim maintenance may be sought where support is needed before the final hearing or before the property settlement is resolved.
The wording of any agreement or order matters. It should identify the amount, timing, duration, payment method and what event will end or review the arrangement.
Maintenance and child support
Child support and maintenance are different. Child support is for the financial support of children. Spousal or de facto partner maintenance is for the financial support of a former partner.
The two can still interact in a practical way. If a person has the primary care of children, that may affect their expenses, capacity to work and financial need. If a person is already paying child support, that may affect their capacity to pay maintenance.
For child support issues, see our child support guide.
New relationships and remarriage
A new relationship may affect maintenance if it changes a person’s financial circumstances. The Court may consider the financial relationship between a person and their new partner, including whether expenses are shared.
Remarriage can also affect spousal maintenance. If you are receiving or paying maintenance and a new relationship or remarriage is involved, get advice before assuming the obligation automatically continues or ends in every circumstance.
Time limits
Time limits matter. For married spouses, maintenance proceedings generally need to be started within 12 months after a divorce order takes effect. For de facto partners, proceedings generally need to be started within two years after the de facto relationship breaks down.
Late applications may require the Court’s permission. That permission is not automatic, so delay can create real risk.
Evidence that helps
Useful evidence may include payslips, tax returns, bank statements, Centrelink records, mortgage or rent documents, medical evidence, childcare costs, school expenses, loan statements, budgets and evidence about job capacity or retraining.
If you are asking for maintenance, prepare a clear budget showing reasonable expenses and the gap between income and need. If you are responding to a maintenance claim, prepare evidence of your own income, expenses, debts and commitments.
Avoid relying on broad statements such as “they can afford it” or “I cannot pay”. Maintenance decisions are evidence-based.
The next step
Maintenance can be urgent, especially where one person cannot meet ordinary expenses after separation. It should be considered alongside property settlement, child support and any immediate safety or housing issues.