Introduction.
Facing a spousal maintenance application or being asked to pay maintenance can feel overwhelming. You might be uncertain about deadlines, unsure of what counts as “need” or “capacity to pay,” or fearing financial exposure years after separation. Whether you’re the person seeking support or the one being asked, understanding your rights and responsibilities under Australian law is essential.
This article addresses the legal issue head‑on, guiding readers through the statutes, case law, procedural timeframes, and practical considerations that shape spousal maintenance applications. Because every case is unique and outcomes depend on detailed financial and personal factors, it is strongly recommended that you consult or seek legal advice from Gosford Family Lawyers, who can provide tailored guidance and representation throughout the process.
Spousal Maintenance.
Spousal maintenance in Australia is governed by the Family Law Act 1975 (Cth). Under sections 72 and 75 of that Act, if you cannot adequately support yourself but your former spouse can, you may be entitled to maintenance, sometimes even many years post‑divorce. The equivalent de facto provisions are in sections 90SF and 90SJ.
Understanding Application Time Limits and Exceptions.
Generally, you must apply for spousal maintenance within 12 months after a divorce order (or within two years of separation in a de facto relationship). These deadlines are set under sections 44(3), (4), (5) and (6) of the Family Law Act 1975.
However, courts can grant leave to apply out of time in circumstances involving hardship, for example, where the applicant would otherwise rely on a pension or allowance.
In Bodilly & Hand [2019] FamCA 210, the wife successfully renewed a maintenance order seventeen years after separation, even though the primary property settlement was long finalised.
Similarly, in the Blevins case, a further periodic order was sought over twenty years after divorce, and the court allowed it where financial need persisted and capacity to pay remained.
Demonstrating Need and Capacity to Meet Financial Obligations.
To succeed in a spousal maintenance application, you must show:
- Need: You are unable to meet reasonable expenses from your income and assets. Reasonable expenses include housing, utilities, medical care, schooling, and a standard of living matching the marriage period. The court considers age, health, ability to work, care obligations, and whether reskilling is needed.
- Capacity to pay: The other party must be reasonably able to pay support without undue hardship to themselves.
These criteria derive from the basic test in section 72(1) (for marriages) and section 90SF (for de facto relationships) of the Act.
What the Court Considers.
Where a maintenance application is contested, the court applies the “future needs” factors listed in section 75(2). These include:
- Age and health of both parties.
- Their income, property, and financial resources (including superannuation).
- Capacity for gainful employment or need for retraining.
- Care of children, including appropriate housing.
- The effect of family violence.
- Standard of living during the relationship and realistic post‑separation expectations.
Different Maintenance Options: Interim, Periodic, and Lump Sum.
Temporary or urgent (interim) maintenance may be ordered under section 77 when an applicant faces immediate financial hardship before final resolution. In Hall & Hall [2013] FamCA 975, the court ordered maintenance per month (plus school fees and utilities), pending final orders.
Periodic maintenance involves ongoing regular payments (weekly, fortnightly, monthly). This is the most common mechanism for supporting someone through a transition period, such as reskilling or caring for small children, or recovering from illness.
In some cases, a lump sum maintenance payment may be more appropriate, either for finality or practicality. Courts can fashion lump sum orders where both parties require certainty, or where a lump sum reflects the recipient’s likely future needs and the payer’s capacity to settle at once.
Assessing Property Agreements, Trusts, and Attempts to Evade Liability.
Binding Financial Agreements under Part VIIIA (or equivalent de facto provisions) may prevent a court from making maintenance orders, but only if signed with informed consent and legal advice, and without unconscionable behaviour. Agreements signed under duress, misleading conduct, or where one party could not support themselves without a pension can be set aside.
In Kennon v Spry [2008] HCA 56, the High Court confirmed that discretionary trust assets could count as property for spousal maintenance or property settlement purposes, especially where one partner retained equitable or fiduciary rights. The court held that trust structures cannot automatically shield assets from maintenance claims.
How Courts Use Discretion to Achieve Fair and Equitable Results.
Australian family law requires courts to exercise broad discretion to deliver outcomes that are “just and equitable” in light of property, contributions, needs, and future circumstances. This standard applies equally to maintenance orders. In property litigation precedents like Norbis v Norbis [1986], the High Court acknowledged that contributions may be assessed asset‑by‑asset or globally, depending on each case’s facts. By analogy, maintenance decisions must be tailored to whole‑of‑life assessments, not narrow formulae.
Changing Circumstances: How Variation, Cessation, and Remarriage Affect Orders.
Orders for spousal maintenance can be modified under section 79 or 81, or their de facto equivalents, if there is evidence of a material change in circumstances. Examples include: the recipient regains financial independence, the payer loses capacity due to loss of income, or the recipient remarries or enters a new de facto relationship.
Variation may be necessary even where maintenance is part of a property settlement, but only where the court concludes continuing obligations are no longer required or where a new hardship arises. Courts will consider both parties’ disclosures and affordability, as seen in appeals like Hall & Hall [2014] FamCA 154, where the payer was unsuccessful in discharging an interim maintenance order despite alleged undisclosed assets.
Serious Allegations and the Required Standard of Proof.
In some maintenance proceedings, allegations of family violence or coercive control may be raised to support a finding of financial need or to explain inability to work. The Briginshaw v Briginshaw [1938] HCA principle applies: serious allegations require sufficiently cogent evidence, even on the civil standard of “balance of probabilities”. Thus, evidence must be clear, consistent, and admissible.
Practical Steps for Preparing and Presenting Evidence.
Although this is not legal advice, common best practice includes:
- Collecting financial statements, tax returns, bank records, medical reports, and evidence of retraining or childcare duties.
- Showing reasonable job searches or enrolments in courses if the ability to work is impaired.
- Presenting budgets reflecting living expenses consistent with the period of marriage.
- Demonstrating the paying party’s income, assets, liabilities, and expenses (including obligations to support children or a new spouse).
- If a Binding Financial Agreement exists, ensuring whether it remains valid or is subject to challenge.
These efforts help the court weigh need and capacity under sections 72 and 75, or their de facto equivalents.
Intersection with property settlement cases.
Although this guide centres on spousal maintenance, outcomes in property settlement cases often overlap. For example, Norbis v Norbis teaches that contribution assessments may differ asset by asset or as a global pool, a principle equally relevant when maintenance obligations depend on resources tied up in superannuation or trusts. Similarly, Kennon v Spry highlights that trust interests may count as property when assessing capacity to pay.
Addressing attempts to conceal or transfer assets.
Courts will look beyond structuring if there is evidence of intent to reduce matrimonial property or maintenance capacity. In Kowaliw v Kowaliw (1981), the Family Court held that losses from reckless disposal or concealment may be shared, even where property values decline, particularly if one party deliberately diminished the pool. This principle extends to spousal maintenance: a payer cannot avoid responsibility by shifting assets if courts see conduct designed to reduce maintenance liability.
Conclusion.
If you are navigating a spousal maintenance application or responding to one, it is vital to clarify your legal rights and duties under the Family Law Act 1975 (Cth). Every case turns on its facts: your financial position, your former partner’s resources, your ability to work, any history of illness or caregiving, and any binding agreements in place.
Seeking professional legal advice early can help you understand deadlines (especially limits under section 44), evaluate whether you have a realistic case, and prepare a clear presentation of need or capacity. Well‑prepared evidence and a clear grasp of legal standards can make the difference between success and refusal.
You have the right to fair consideration under Australian law, even if you are applying decades after separation, or if new circumstances impact either party. Understanding your responsibilities and entitlements is the first step toward a just outcome.
If you want to explore your options, verify deadlines, or assess whether maintenance is appropriate, consulting Gosford family lawyers can help provide clarity in what feels like a complex and emotional process.