Often if one party has an obligation to continue to financially support a former partner after separation. This obligation is known as spousal maintenance or if you are in America it is known as alimony and applies to both married and de-facto relationships.
Under the family law act there is a duty to support the other party whether you are married, divorced or ex de-facto. There is no automatic entitlement to spousal maintenance. It is not presumed the Husband must pay the Wife as it can be vice versa depending upon the circumstances.
If a party seeks Spousal Maintenance they must satisfy: –
- He or she does not have the capacity to meet reasonable living expenses; and
- The other party has capacity to provide financial assistance through surplus from their income or other investments.
Generally circumstances where spousal maintenance will apply is where one party has the primary care of the children, the parties age, physical or mental capacity or unable to gain employment due to lack of skills or qualifications.
There is no set formula for spousal maintenance and each matter is determined upon its own facts and circumstances. Spousal payments can be made by weekly, monthly or even a lump sum payment.
Time limits do apply for a spousal maintenance application. For married couples, an application must be made within 12 months after divorce and for a de-facto relationships a time limit of 2 years from the date of separation applies.
It is important you get tailored advice from a family law expert at the commencement of your separation to protect your rights.
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