Family lawyers are often asked whether spousal support and spousal maintenance means the same. If you are wondering what spousal support is, and whether there is a difference between spousal support and spousal maintenance, you have come to the right place.
In Australia, spousal support is the recognition of the mutual obligations that both parties have, to maintain each other in a marriage or in a de facto relationship.
Spousal maintenance is the financial support payments made from one partner to the other after the breakdown of their marriage or de facto relationship. In Australia, both terms, i.e., spousal support and spousal maintenance are used interchangeably to mean the financial support payments that are made by one party to the other.
So, when you are wondering what is spousal support, and come across the term spousal maintenance instead, it is essential to know that in the context of family law they mean the same thing.
What Is Spousal Support: Detailed Explanation
Spousal support is generally paid by one partner after the breakdown of a marriage or de facto relationship. In the US, this term is more commonly referred to as “alimony.” Spousal support payments are not the same as child support payments, or adult child maintenance. This is a separate financial support payment meant for former spouses.
Both parties can claim for spousal support, following which, based on the unique circumstances of the case the court will make orders accordingly. Section 75 of the Family Law Act 1975 states certain criteria that need to be considered when making decisions about spousal support. Some of these include:
- the age and state of health of each of the parties;
- the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
- whether either party has the care or control of a child of the marriage who has not yet attained the age of 18 years
Eligibility Requirements for Spousal Support or Maintenance
If you are seeking the answer to what is spousal support, it is likely that you or someone you know wishes to make a claim for the same. In order to do so, it is important to know the eligibility requirements. Certain requirements that need to be fulfilled prior to making claims include:
- Spousal support will be payable only if your spouse has the financial resources to be able to make support payments to you.
- As per Section 44(3) of the Family Law Act 1975 – spousal support must be awarded within 12 months in cases of divorce; and
- As per Section 44(5) of the Family Law Act 1975 – spousal support must be awarded within 24 months in cases of de facto separation.
Types Of Court Orders Made for Spousal Support
In understanding what is spousal support, you should be aware of the various kinds of orders that can be made in this regard. When the court decides to make an order for spousal support, the court can make any of the following types of orders:
- order the transfer of property;
- order the payment of a lump sum;
- make a final order;
- order that periodic payments be made;
- make an order either for fixed term, for life, or until further orders are made;
- impose reasonable terms and conditions; and
- many any other appropriate orders which the court seems is necessary
FAQs On What Is Spousal Support
Who can apply for spousal support?
A de facto partner or a spouse who is need of financial assistance from their partner can file an application for spousal support.
When does spousal support need to be paid?
The usual follow-up question for what is spousal support is when is spousal support paid? Spousal support is paid when:
- One party is need of financial assistance to support themselves till they are able to get back on their feet;
- The party who is paying spousal support has the capacity to be able to pay their former spouse; and
- It would be appropriate in all circumstances that the spousal support payments be made.
Is spousal support included in property settlement?
Often, when finalising property settlements, spousal support may be an important consideration, and is often included by way of a lump sum.
Are spousal support payments mandatory?
Because each family law case is different, there is no fixed answer for this question. It largely depends on what the Family Courts think is appropriate. However, according to the Family Law Act 1975, one party is liable to maintain the other party upon separation, where the other party is unable to support themselves, and it is reasonable to make such payments.
How can lawyers help?
Now that you an idea about what is spousal support, it is important to also understand the role of solicitors when you’re dealing with matters of spousal support or maintenance.
Family lawyers are dedicated to providing everyone with market-leading legal advice for all family law matters. Each case needs to be dealt with differently, depending on unique circumstances. Because of the wealth of experience that lawyers have, they provide high-quality advice that is tailored to your specific situation.
John Bui is the Principal Solicitor of JB Solicitors – a law firm based in Sydney, Australia. John is a Nationally Accredited family law Mediator and Arbitrator with over 10 years’ experience in family law and commercial litigation.