Spousal and de facto maintenance

Maintenance is when a partner has to maintain their ex-partner financially after a relationship ends.

If you cannot meet your reasonable expenses from personal income or assets, there may be an obligation on the other party to pay maintenance. For example, if you can’t adequately support yourself because:

• you have responsibility for the care of a child who is under 18 years of age
• your age or state of health prevents you from gaining appropriate employment
• the duration of the relationship and the extent to which it affected your earning capacity.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce.

In most cases, you should try to resolve disputes before you go to court. There are family dispute resolution services that can help you.

If you still cannot agree, you can apply to the court for a financial order.

When will a maintenance order be made?

The Court will decide whether it is appropriate to make a maintenance order after considering your circumstances. The Court has to consider issues such as:

• the age and state of health of each partner
• the income, property and financial resources of each partner and their capacity for appropriate gainful employment
• whether a partner has the care of a child under 18 years of age
• the responsibilities of either partner to support any other person
• the eligibility of either partner for a non-means-tested pension, allowance or benefit
• a standard of living that in all the circumstances is reasonable
• the extent to which a maintenance payment would allow a party to undertake education or training to establish an adequate income.

The legislation provides a full list of the issues that are considered. For marriages, it is in s75 of the Family Law Act 1975, for de facto relationships it is in s205 of the Family Court Act 1997.

Types of maintenance orders

The court can make maintenance orders including:

• a lump sum payment, either in one amount or instalments
• a weekly, monthly, yearly or other period sum
• specifying a transfer or settlement of property.

Other order types, such as orders dealing with trusts, can be found in s75 of the Family Law Act 1975 for marriages, and s205 of the Family Court Act 1997 for de facto relationships.

Time limits

You must apply for a court order:

• within one year of the date of your divorce or annulment
• within two years of the date your de facto relationship ended.

You need the Court's permission to apply outside of these time limits. 

When maintenance ends

The right to regular payments of maintenance ends if:

• the person receiving maintenance remarries, unless there are special circumstances
• the person paying maintenance dies
• the circumstances of either parties changes.

If you marry while there is a maintenance order in place, you have a duty to notify the person making the maintenance payments. Otherwise, the person can recover any maintenance paid after the date of the marriage.

Examples of changes of circumstances that may affect maintenance orders includes:

• entering a new de facto relationship
• significant changes to child caring responsibility
• changes to the earning capacity of either party.

To end maintenance, you need to apply to the Court to vary your maintenance orders.

More information

The Financial and Property page has more information on how to make an application for financial orders.

Last updated: 16-Apr-2018

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