Spouse maintenance – when and how much?

When a couple separates, access to money is often one of the most immediate issues.

Where one spouse does not work outside the home, works part-time, or is otherwise unable to work, and if joint bank accounts are separated, the spouse may not be able to meet their own living costs.

So, what happens?   

Spouses have a duty to financially support the other spouse in these circumstances.  However, there is no automatic “right” to receive spouse maintenance, and no automatic obligation to pay it.

In order to decide whether spouse maintenance is payable, there is a two step test:

• Step 1 – Can the spouse meet their own reasonable living expenses from their own income or resources? 

If the answer is “no”, then:

• Step 2 – Does the other spouse have a “surplus” of funds? 

If the answer to this question is “yes”, then spouse maintenance is payable.

Spouse maintenance doesn’t go on forever.  It is intended as a “stop gap” measure, usually to enable the spouse to retrain, re-enter the workforce or otherwise be able to support themselves.

Does the person applying for spousal maintenance have to work? 

This will depend on the circumstances of the parties and their relationship prior to separation. For example:

• Do the parties have young children?  What is their care arrangement?  Does the non-working spouse have primary care of the children?

• What is the primary breadwinner’s level of income, stability of income/employment?

• What is the non-working spouse’s work history, qualifications? Does he/she have any health issues that prevent them from working?

• What are the overall expenses across both households? Are the expenses reasonable in the context of the family’s usual lifestyle?

• Are there resources (other than the breadwinner’s income) available to the non-working spouse? 

Parties are rarely forced to rush back to work during a separation, however a realistic assessment of the impact that paying spousal maintenance must be undertaken.

What are “reasonable” expenses? 

What expenses are reasonable will depend upon the circumstances of each case and the particular families’ income, resources and usual lifestyle. A party seeking spouse maintenance is not expected to live “on the breadline” however it is often a practical reality that running two households from a single income will mean that both parties will need to make some adjustment to their lifestyle.

Types of spouse maintenance 

Spouse maintenance can take the form of:

• a weekly/monthly cash payment

• a one-off lump sum payment

• payment of particular bills/expenses on the other party (e.g. mortgage, rent, private medical insurance, household utilities)

• use of a particular asset (e.g. car, house) 

Types of spouse maintenance include:

• interim spouse maintenance (i.e. arrangements that will be in place until you have a property settlement). This could be an ongoing monthly cash sum, or it could be the payment of certain expenses e.g. rent, mortgage repayments, utilities

• final spouse maintenance (i.e. arrangements that will continue for a period of time past your property settlement)

• lump sum spouse maintenance (i.e. a lump sum to be paid from a source of funds e.g. sale proceeds of a home) 

Spousal maintenance can be obtained by agreement or by Court Order.

What has to be proven at court

The person applying for spousal maintenance must prove they are unable to meet their reasonable living expenses from their own income and/or resources, and that their spouse has the capacity to contribute towards the shortfall.

The evidence that the party applying for spouse maintenance should produce includes:

• Documents to demonstrate their income (including their salary, investment income and any government benefits they receive)

• Details of any child support they receive

• Their income/employment capacity

• Details of any course of study they are undertaking

• Their parenting commitments and how they impact on their ability to work

• A breakdown of their living expenses (and supporting documents)

• Documents demonstrating their spouse’s income/resources, their expenses and their capacity to pay the spouse maintenance

• Details of how your expenses were met during the relationship and following separation

If you are making or facing an application for spousal maintenance, you should seek urgent legal advice, as there are certain steps you must take before your first Court date, and there can be serious consequences if you don’t.