Spousal Maintenance
Most Australians are familiar with the term "Alimony", from reading about celebrity divorces or watching American television shows.
In Australia alimony is referred to as Spouse Maintenance, and is possible in both marriage and de facto separations.
If a spouse is unable to support themselves adequately, usually because of parenting responsibilities or poor health, their partner may be liable to pay spouse maintenance. In deciding whether assistance is needed, any Centrelink income is ignored, and the standard of adequacy will depend on the means and lifestyle of the parties – what is "adequate" for the ex-wife of a multi-millionaire would be rather more than the for an average suburban housewife, for example.
However, any income – and the earning capacity – of the claiming party is significant. In most cases the courts will look at what a person is reasonably capable of earning, not what they choose to earn. The neuro-surgeon who chooses to work as a part-time cleaner may still be assessed on the basis of their earning capacity as a neuro-surgeon.
In the ordinary suburban family situation, the usual problem is not proving a need, but rather the ability to pay. The major bread-winner, after he or she has housed themselves, supported themselves, and paid child support will often have little ability to pay, and for that reason spouse maintenance is not the norm in middle income families.
It is possible to cash out spouse maintenance as part of a property settlement. The spouse claiming maintenance receives more cash in return for waiving future maintenance rights, but if there are children involved, care needs to be taken, as an arrangement may be liable to be cancelled if they could suffer hardship.
Under De Facto law, at the moment the situation is a little different. Centrelink income will be considered in deciding whether there is a need, and if a claim is based on parenting needs, any entitlement cuts out when a child reaches twelve. This limitation only affects spouse maintenance; child support will still continue.
The Quinn & Scattini Family Law team can give you expert advice about a spouse maintenance claim, whether the claim might be by you or against you. You can talk to one of our Team solicitors at any of our offices to get practical, down to earth advice and assistance, so if we can help, ring us.
If you would like to find out how Quinn & Scattini can help you, please call us on 1800 999 529, or email us at mail@quinnscattini.com.au
