What Is Spousal Maintenance and Who Is Entitled to It?
Spousal maintenance is separate from child support, and it is not automatically awarded. Many people assume that if they earned less during the relationship, they will simply receive ongoing payments after separation. It does not work that way.
Spousal maintenance depends on two things: whether one person genuinely needs financial support, and whether the other person can afford to provide it.
This guide explains what spousal maintenance is, who is eligible for it in Australia, how it is calculated, and how it differs from both child support and de facto maintenance.
What Is Spousal Maintenance Under Australian Family Law?
Spousal maintenance is financial support that one former spouse pays to the other after separation or divorce. Its purpose is to help a person who cannot adequately meet their own reasonable living expenses, where their former partner has the capacity to provide support. It is governed by the Family Law Act 1975 (Cth).
The key idea is that marriage can create ongoing financial responsibilities that do not always end when the relationship does. If one partner stepped back from paid work, for example to raise children, and cannot immediately support themselves after separation, spousal maintenance can bridge that gap.
It is not a reward or a penalty. It is a needs-based form of support, and it is assessed separately from how property is divided between the parties.
Who Is Eligible to Apply for Spousal Maintenance?
You may be eligible to apply for spousal maintenance if you cannot adequately support yourself and your former partner has the financial capacity to help. The court considers two threshold questions: does the applicant have a genuine need, and does the other party have the ability to pay?
To assess need and capacity, the court looks at a range of factors, including:
- Each person’s age and health.
- Each person’s income, property, and financial resources.
- Each person’s ability to work and earn an income.
- What is a suitable standard of living in the circumstances.
- Care of children, particularly children under 18.
- The length of the relationship and its effect on each person’s earning capacity.
Eligibility is not about who was at fault in the relationship breakdown. It is about the practical financial position of each person after separation. Both married and de facto partners can apply, provided they meet the relevant requirements and time limits.
How Do Courts Calculate the Amount of Spousal Maintenance?
There is no fixed formula for spousal maintenance in Australia. Unlike child support, which uses a set government formula, spousal maintenance is assessed case by case. The court weighs the applicant’s reasonable needs against the other party’s capacity to pay after meeting their own reasonable expenses.
In practice, the court works through the numbers in a few steps:
- Assess the applicant’s needs. It looks at reasonable living expenses and any income the applicant can reasonably earn.
- Identify the shortfall. It works out whether there is a genuine gap between those expenses and that income.
- Assess the other party’s capacity. It examines whether the other party has surplus income after covering their own reasonable expenses.
- Decide on an order. Maintenance may be ordered where there is both a genuine shortfall on one side and a genuine capacity to pay on the other.
Because it is discretionary and fact-specific, two cases with similar incomes can produce different outcomes depending on health, care of children, and earning capacity. This is why tailored advice matters so much in spousal maintenance cases.
How Long Does Spousal Maintenance Last?
Spousal maintenance is not usually a permanent arrangement. In most cases, it is intended to provide support for a limited period while the receiving party takes steps toward financial independence, such as returning to work or retraining.
Maintenance can be ordered in different forms. It may be periodic, meaning regular ongoing payments, or a lump sum paid at once. The duration depends on the circumstances.
A younger person capable of returning to the workforce may receive support for a shorter, defined period. An older person, or someone with a long-term inability to work, may receive it for longer.
Orders can also be reviewed and varied if circumstances change significantly. Examples include the receiving party finding well-paid work or the paying party’s income dropping. Maintenance also generally ends if the receiving party remarries.
What Is the Difference Between Spousal Maintenance and De Facto Maintenance?
The main difference is the type of relationship each applies to, not the underlying principles. Spousal maintenance applies to married couples. De facto maintenance applies to people who lived together in a genuine domestic relationship without being married. Both are assessed on the same basic test of need and capacity to pay.
The most important practical differences are around eligibility and time limits:
| Feature | Spousal maintenance (married) | De facto maintenance |
| Applies to | Married couples | Couples in a genuine de facto relationship |
| Extra proof needed | Marriage | That a genuine de facto relationship existed |
| Time limit to apply | 12 months after divorce becomes final | 2 years from the date of separation |
| Underlying test | Need and capacity to pay | Need and capacity to pay |
A de facto partner must usually establish that the relationship was genuine, which the court assesses by looking at factors like its length, living arrangements, and financial interdependence. If you were in a de facto relationship, our guide on de facto separation explains these requirements in more detail.
How Is Spousal Maintenance Different from Child Support?
Spousal maintenance and child support are two separate things, and it is important not to confuse them. Child support is money paid to help with the costs of raising children. Spousal maintenance is money paid to support a former partner who cannot adequately support themselves.
You can be entitled to one, both, or neither. The way they are worked out is also different:
- Child support is generally calculated using a formula administered by Services Australia, based on each parent’s income and the care arrangements for the children.
- Spousal maintenance has no formula and is decided by the court based on need and capacity to pay.
Because they serve different purposes, receiving child support does not prevent you from also seeking spousal maintenance, and the two are assessed independently. You can learn more about how child support is calculated separately.