In addition to property settlement orders, some parties may be entitled to claim spousal maintenance from their former partner.
The public policy component of the spousal maintenance legislation is such that if there is an established need for support and the other party has a capacity to meet this need, then the entitled party should not need to rely on government assistance to support their needs and those of children of the relationship.
Spousal maintenance has three necessary components for a claim to be successful, namely:
- A right to maintenance by virtue of an inability to meet one’s weekly needs from their income as a result of the care of children or their physical or mental health;
- An applicant seeking maintenance must establish that there is a deficit in their income compared with their expenses each week; and
- The respondent to a maintenance claim is capable of providing support by virtue of having an excess in their weekly income versus expenses.
Child support is considered as income for spousal maintenance purposes, however any government/Department of Human Services benefits are not.
Property settlements and spousal maintenance can and usually do overlap, with the court awarding interim (short term) maintenance while the balance of the property settlement matters are finalised. In some cases, the court will also consider making final spousal maintenance orders which continue even after the assets of the parties have been divided.