Maintenance for spouse or de facto partner following separation

To obtain a court order for maintenance under the Family Law Act 1975 (Cth), the person applying for it will generally have to prove that they are unable to work and cannot support themselves properly because of advanced age or disability, the need to care for children or some other reason [see s 72(1) for married relationships and s 90SF(1)(b) for de facto relationships]. In addition, they will have to prove that their former partner is reasonably able to pay the maintenance [see ss 72(1) and 90SF(1)(a)].

In deciding whether to make a maintenance order, the Court must consider the following factors [see s 75(2) for married relationships and s 90SF(3) for de facto relationships]:

How much an applicant will be entitled to receive in maintenance after considering these factors will depend upon the individual circumstances of the case. Where an applicant's capacity to earn has been reduced as a result of a long period out of the workforce during the relationship, they may be awarded maintenance to cover a period of retraining or job seeking. Maintenance may also be ordered where an applicant cannot support themselves due to health problems and the other party has the capacity to support them. Maintenance is less likely with short marriages, or where each party has retained the capacity to earn a living.

Maintenance claims can be resolved separately or at the same time as a property settlement, either by financial agreement or court order. In making property settlement orders, it is usual for the Court to specify whether any and what amount is paid as maintenance [see s 77A for married relationships and s 90SH for de facto relationships]. These orders bring claims for maintenance to an end.

A payment can be made in a lump sum, or by periodic payments. An order for periodic payments of maintenance can be registered for collection with Services Australia.

A maintenance order will generally cease when one of the following occurs:

A continuation order may be made in (rare) cases, where, for example, a spouse was formerly married to a wealthy spouse and subsequently marries a spouse in poor health or poor financial circumstances.

Time limits apply to maintenance claims. Legal advice should be sought as soon as possible.

Childbirth maintenance

The birth parent of a child is entitled to financial support from the other parent (if they are not married) for the period beginning 2 months prior to the child's due date and ending 3 months after the child's birth [Family Law Act 1975 (Cth) s 67B(a)]. The birth parent is entitled to maintenance for more than 2 months prior to their child's due date if they cease paid employment on medical grounds related to their pregnancy.

A non-birthing parent must also make a proper contribution towards [s 67B(b) – (d)]

A birth parent may apply to the Federal Circuit and Family Court for childbirth maintenance from the non-birthing parent during their pregnancy or up to 12 months after the birth of their child [s 67G]. An extension of time may be granted if the Court is satisfied that refusal would cause hardship to the applicant, their child or another person [s 67G(2)].