Going through a separation or divorce can be emotionally and financially challenging. One of the biggest concerns people have is how they will support themselves or whether they will have to provide financial support to a former partner.
As family and divorce lawyers, we often hear the question: “What is spousal maintenance, and do I have to pay it?”
If you or your former partner are struggling financially after separation, spousal maintenance may be required. Understanding how spousal maintenance works under the Family Law Act 1975 (Cth) and the Family Court of Western Australia can help you prepare for what comes next.
This guide will explain what spousal maintenance is, when it applies, common misconceptions, and what to do if you need to apply for or challenge a maintenance order.
What is Spousal Maintenance and Why Does It Exist?
Spousal maintenance is financial support that one partner may be required to pay to the other after separation or divorce, as outlined in the Family Law Act 1975 (Cth) for married couples and the Family Court Act 1997 (WA) for de facto relationships in Western Australia. It is separate from child support, which is specifically for the care of children.
The purpose of spousal maintenance is to assist a former partner who cannot support themselves financially due to factors such as health issues, caring for children, or limited work experience. The law recognises that after a relationship ends, one person may require additional financial support while they work towards becoming financially independent.
How Does the Family Court Decide on Spousal Maintenance?
In general terms the Family Court of Western Australia follows a two-step test when assessing a claim for spousal maintenance:
- Does the applicant genuinely need financial support?
- Can they meet their basic living expenses on their own?
- Are they unable to work due to health, age, or caring for children?
- Can the other party afford to pay?
- Would paying spousal maintenance cause financial hardship to the paying party?
- Do they have the capacity to provide reasonable support?
If both conditions are met, the court may order temporary or ongoing payments to help the financially disadvantaged spouse.
Factors Courts Consider When Deciding on Spousal Maintenance
When deciding whether spousal maintenance should be awarded, the Family Court carefully examines the financial and personal circumstances of both parties. The court’s decision is based on fairness and financial need, ensuring that one party is not left in undue hardship while the other has the means to provide support.
Here are the key factors the court considers:
1. Age and Health
A person’s age and overall health can impact their ability to work and become financially independent. If a spouse is older or has health conditions or disabilities that limit their capacity to earn an income, they may be more likely to receive spousal maintenance.
For example, if a spouse is nearing retirement age or has a chronic illness requiring ongoing medical care, the court may recognise their financial challenges and award maintenance accordingly.
2. Income, Property, and Financial Resources
The court reviews each party’s financial situation, including:
- Current income – salaries, business earnings, government benefits, or other sources of money
- Property and assets – homes, vehicles, savings, shares, or investments
- Financial resources – superannuation, inheritance, or other financial entitlements
- Debts and liabilities – loans, mortgages, and financial obligations
The goal is to assess the financial gap between the two parties and determine whether one person needs support and whether the other can reasonably provide it.
3. Ability to Work
The court considers whether each party has the capacity to earn an income now and in the future. Factors that may limit a person’s ability to work include:
- Limited education or work experience due to time spent as a homemaker
- Health issues or disabilities affecting employment opportunities
- Caring for children or other dependents, making full-time work difficult
If a spouse cannot work immediately but is likely to re-enter the workforce in the future, the court may grant temporary spousal maintenance to support them while they gain employment skills or training.
4. Suitable Standard of Living
While the court does not aim to maintain the exact same lifestyle a couple had during the marriage, it does consider what is a reasonable standard of living for both parties.
For example, if one spouse continues to enjoy a high standard of living post-separation while the other is struggling financially, the court may order maintenance to help bridge the gap and prevent undue hardship.
However, the court also balances this consideration with the paying spouse’s ability to afford maintenance—payments will not be ordered if they cause financial strain.
5. Impact of the Marriage on Earning Capacity
The court recognises that marriage or a long-term de facto relationship can significantly impact a person’s ability to earn an income. Some common situations include:
- A spouse who gave up their career to support the family
- A spouse who stayed home to raise children, leaving them with limited work experience or outdated skills
- A spouse who relocated for the other’s career, impacting their own job opportunities
If the marriage has affected one party’s ability to become financially independent, the court may order spousal maintenance to help them adjust post-separation.
6. Care of Children
The court considers who has primary care of the children, especially if they are:
- Under 18 years old
- Adult children with disabilities who require ongoing care
If one parent has full or majority care of the children, they may not be able to work full-time, limiting their ability to support themselves financially. In such cases, spousal maintenance may be necessary to ensure that both the parent and the children’s living conditions are stable.
Common Misconceptions About Spousal Maintenance
There are many misconceptions surrounding spousal maintenance in Australia. Below, we clarify some of the most common misunderstandings:
Spousal maintenance is automatic
Many assume that spousal maintenance is granted in every case. This isn’t true—the person applying must prove they genuinely need financial support, and the other person must have the ability to pay.
It lasts forever
Spousal maintenance is usually temporary and is intended to help the recipient become financially independent. In some cases, it may be reviewed or adjusted over time.
Only women can receive spousal maintenance
This is not true—spousal maintenance is gender-neutral. Either partner can apply if they meet the legal criteria, including men who may have been financially dependent during the relationship.
A financially struggling spouse is always entitled to maintenance
The court considers both parties’ financial positions. If the paying spouse does not have the financial means to provide support, the court may reject the application.
How to Apply for Spousal Maintenance
If you believe you are entitled to spousal maintenance, you can apply to the Family Court of Western Australia. The process involves:
1. Preparing and Filing an Application
To apply, you need to submit:
- Form 1 – Initiating application (if starting a new case) OR
- Application in a case (if proceedings are already underway)
You must also provide an affidavit that explains:
- Your income, assets, debts, and expenses
- Any known details about your former partner’s financial situation
- Why you cannot support yourself financially
- Any other relevant factors
2. Financial Disclosure
Both parties must exchange financial statements, including:
- Income and expenses
- Assets and debts
- Liabilities and financial obligations
This ensures transparency, allowing the court to assess whether maintenance is necessary and what amount is fair.
3. Attempt to Resolve the Matter
Before the court makes a decision, you and your former partner are encouraged to try and reach an agreement through:
- Family dispute resolution (mediation)
- Negotiation between lawyers
If an agreement is reached, it can be made legally binding through Consent Orders.
Court Hearing
If no agreement is reached, the case moves to a court hearing, where a judicial officer will review:
- Your financial needs
- Your former partner’s ability to pay
- Whether the requested maintenance is reasonable
The judge may:
- Approve or deny your request
- Adjust the amount of maintenance
- Set a time limit for payments
How to Challenge a Spousal Maintenance Claim
If you have been served with a spousal maintenance application, you have the right to challenge it. To contest a claim, you will need to demonstrate one or more of the following:
- Providing evidence that the applicant can support themselves
- Demonstrate that you cannot afford to pay due to financial hardship
- Provide evidence that the applicant has sufficient assets or income
Legal Protection
It is strongly recommended that you seek legal advice before contesting a spousal maintenance claim. A divorce and separation lawyer in Perth can help you gather the necessary evidence, prepare your response, and represent you in court if required.
Get Legal Advice Today
Spousal maintenance can be complicated, and whether you are eligible depends on your financial situation. The best way to understand your rights is to seek legal advice.
Need guidance on spousal maintenance? A Perth-based family lawyer can help you understand your options and protect your financial future.
Contact us today for personalised legal advice on what spousal maintenance is and how it may apply to your situation.
Note: This post was originally published on April 11, 2019 and has been updated on April 02, 2025.