spousal maintenance

For married couples, either party can apply for spousal maintenance after separation. In the case of de facto couples, including same-sex couples, eligibility to apply for spousal maintenance depends on factors such as the duration of the relationship, whether a child was born from the relationship, and the financial arrangements during the relationship.

Regardless of the type of relationship, the Court will generally consider a person eligible to apply for spousal maintenance if they are unable to adequately support themselves for one or more of the following reasons:

• They care for a child of the relationship under 18.
• They are aged or have a physical or mental incapacity for appropriate gainful employment.
• For any other adequate reason, like having given up work to support the other party or having no recent work experience.

Remember, the other party must also be reasonably able to pay the maintenance, considering their income, property, financial resources, and living needs.

It's important to note that the applicant may only exercise the right to apply for spousal maintenance within 12 months of the finalisation of divorce for married couples or within two years of the breakdown of a de facto relationship. Exceptions may apply, but legal advice should be sought.

The above is a general summary of the eligibility criteria, and each case can be complex and unique. Always seek legal advice about personal circumstances.

The calculation of spousal maintenance in Western Australia is a complex process and not a simple mathematical formula. It involves a discretionary court assessment based on each case's circumstances.

However, there are specific factors that the Court considers when determining spousal maintenance payments under the Family Law Act 1975. These include - 

• The Applicant's Needs: The Court will consider whether applicants can adequately support themselves. Factors like age, physical and mental health, and the care of children under 18 are considered.
• The Capacity of the Respondent to Pay: The Court will examine the income, property, financial resources, and earning capacity of the respondent to determine their ability to make maintenance payments.
• The Standard of Living: The Court will consider what is reasonable for both the applicant and the respondent in light of their standard of living during the relationship.
• The Duration of the Marriage and Its Impact on Earning Capacity: The length of the marriage or de facto relationship and the extent to which it has affected the applicant's earning capacity also influence the amount of spousal maintenance.
• Contributions Made: The Court considers the contributions (financial and non-financial, including homemaking and parenting) each party made during the relationship.
• Other Responsibilities: The Court considers if the party paying maintenance has responsibilities to support other people, such as children from another relationship.
• Other Relevant Circumstances: The Family Court WA will consider any other facts or circumstances related to each situation.

While these factors guide the Court's decision, the exact amount of maintenance will be decided on a case-by-case basis. Given this complexity, obtaining legal advice is essential for anyone involved in a spousal maintenance matter.

When assessing a spousal maintenance application, the Court must regard the reasonable standard of living in the circumstances. This standard is not fixed; instead, it's determined by a broad range of factors tied to the unique circumstances of each case.

The Family Law Act 1975 suggests maintaining, as far as practicable, the standard of living enjoyed by the parties during their relationship. However, it's important to note that the emphasis is on what is 'reasonable' in the circumstances rather than maintaining an exact replication of the lifestyle during the relationship.

The Court will assess various aspects such as -

• The income and financial resources of each party during the relationship
• The usual living conditions and lifestyle of the couple
• Any benefits such as housing, vehicles, vacations, and other luxuries enjoyed during the relationship
• The role of each party in maintaining that lifestyle (for instance, one party might have been a high-income earner while the other focused on homemaking)

The Court tries to consider that neither party is left in financial hardship or unduly burdened. This consideration is made in conjunction with examining other factors like the age, health, care of children, and the ability to gain employment of the applicant.

As every case is unique, it's crucial to get legal advice tailored to your circumstances when dealing with spousal maintenance matters.

The duration of spousal maintenance in Australia is not predetermined and varies case by case. Spousal maintenance may be ordered for a set period, indefinitely, or until a specific event occurs.

The duration can be influenced by the length of time the recipient spouse is expected to require financial assistance and the other party's ability to provide that support.

The Court might order spousal maintenance to continue until a specific event occurs, such as the recipient completing education or training or children reaching a certain age.

The Court might order indefinite spousal maintenance when the recipient cannot become financially self-sufficient due to age, health issues, or other significant factors.

Keep in mind that maintenance orders are not necessarily final. If there's a significant change in circumstances, either party can apply to the Court to vary (increase, decrease, or stop) the maintenance payments.

Given the complexities and individual nature of spousal maintenance cases, it is always advisable to seek professional legal counsel to understand how these factors apply to your situation.

If there's a significant change in the financial circumstances of either the payer or the recipient, either party can apply to the Court for a variation of the maintenance order. For example, if the payer significantly increases their income or the recipient's financial needs substantially increase, a Court may decide to adjust the amount of maintenance.

The Court may also terminate the spousal maintenance under specific conditions. For example, if the recipient remarries. Additionally, if the Court determines that the recipient has not made reasonable efforts to become self-supporting, it can choose to terminate the maintenance order.

If the respondent (the person ordered to pay spousal maintenance) fails to comply with a maintenance order in Australia, serious consequences may follow. The Family Court has enforcement powers to ensure the payment of spousal maintenance.

Here's what can happen if the respondent does not comply -

• Enforcement Hearing: The Court may conduct an enforcement hearing where the respondent must provide information about their financial situation and explain why the order was not complied with.
• Income Withholding Order: The Court may issue an order to directly redirect income from the respondent's employer or other sources (such as rent or other payments) to the recipient.
• Seizure of Property or Assets: In cases of continued non-compliance, the Court can issue a warrant to seize and sell the respondent's property or assets to meet the maintenance obligations.
• Third-Party Debt Notice: The Court may order a third party who owes money to the respondent to pay it directly to the recipient instead.
• Other Legal Consequences: Non-compliance with a Court order is serious and could potentially lead to further legal consequences, including penalties.

It's important to remember that any change in circumstances that affects the respondent's ability to pay spousal maintenance should be addressed immediately by seeking legal advice and potentially applying to the Court for a variation of the order.