Spousal Maintenance

During traditional relationships, one partner serves as the income earner or breadwinner for the household while the other parent serves as the homemaker or primary carer of the children. The breadwinner progresses their career and increases their income earning capacity. Conversely, the homemaker sacrifices their career to care for young children. The homemaker and children rely on the income from the breadwinner to run the household.

Upon separation, one joint household usually turns into two separate households. It is more cost-effective to run one household than two households, which means every available dollar must stretch further. In addition to the mortgage, there is now also a rental lease to pay. There are now two water and electricity bills to pay.

If one party cannot support themselves for an adequate reason such as the care of a child or an inability to work, the other party is liable to financially maintain them to the extent they are able to do so. In summary, the party who needs maintenance will have their finances scrutinised. Their assets, liabilities, income, expenditure, financial resources and earning capacity are all analysed. If their reasonable weekly expenditure exceeds their weekly income and they do not have a financial resource to draw upon, they will establish a weekly shortfall. The other party will then have their finances scrutinised in the same manner. If their weekly income exceeds their reasonable weekly expenses, they will establish a weekly surplus. The payer’s surplus can then be applied towards the payee’s shortfall.

Maintenance is available to married spouses (spousal maintenance) or separated de facto partners (de facto partner maintenance).

Maintenance can be ordered on an urgent basis, an interim or temporary basis, or a final or indefinite basis.

Maintenance either takes the form of periodic payments (weekly, fortnightly, or monthly), or one lump sum payment.

Sometimes an order for lump sum maintenance is made in a final property order because one party has a large earning capacity while there is not enough property available to satisfy the other party’s claim. Lump sum maintenance orders in those situations need to be drafted to prevent the receiving partner from losing their income tested Government benefits.

Please feel welcome to contact Michael Klimek to discuss maintenance in further detail by email at michael@klimekfamilylaw.com.au or phone on 08 6141 3227.