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Spousal Maintenance

If you can’t meet your reasonable living expenses after separation and your former spouse or de facto partner can afford to help, you could be entitled to spousal maintenance.

Equally, if you’ve been asked to pay, you have rights and the amount and duration depend on both parties’ circumstances, not a fixed formula.

Below, we set out how spousal maintenance works, who can apply, and how we can help.

What is spousal maintenance?

Spousal maintenance is financial support paid by one party to a marriage, or one party to a de facto relationship, to their former partner where that partner can’t adequately support themselves. The Family Law Act 1975 places a duty on both married and de facto partners to help support each other after separation in circumstances where one person is in genuine need and the other has the capacity to help.

It is usually a short-to-medium-term arrangement intended to help a person adequately support themselves. It is not designed to equalise incomes or guarantee the lifestyle you had during the relationship, although that standard of living can be one factor the Court considers.

Spousal maintenance is not the same as child support.

Child support is paid for the benefit of a child; spousal maintenance is paid to support a former partner. While the two can run alongside each other, they are assessed separately and according to different criteria.

Am I eligible for spousal maintenance?

To succeed in a spousal maintenance claim, you first need to show that you can’t adequately support yourself from your own income and assets, for one of the following reasons:

• You have care of a child of the relationship who is under 18;

• Your age, or a physical or mental incapacity, affects your ability to work; or

• Any other adequate reasons, for example, a long absence from the workforce during the relationship.

You will also need to show your former partner has the capacity to pay spousal maintenance to you, while still needing to meet their own reasonable needs and still afford to contribute to yours.

In determining an application for spousal maintenance both parties will be required to provide full and frank disclosure of their income, expenses, assets and liabilities.

De facto relationships and spousal maintenance

If you were in a de facto relationship and never married, you can apply for spousal maintenance if any of the following apply:

• You and your former partner lived together as a couple for at least 2 years;

• You lived together for less than 2 years but had a child together;

• Your relationship was registered on a relationships register in your state or territory; or

• You made substantial contributions to the relationship and if no Order was made, you would suffer a serious injustice if you couldn’t apply.

You only need to meet one of these, they are alternative pathways, not cumulative requirements. If you’re unsure whether your relationship qualifies, we can assess this with you.

How is the amount calculated?

There is no fixed formula or calculator for spousal maintenance. Every case is decided on its own facts. The Court looks first at what amount the person who is seeking maintenance, actually needs to meet their reasonable living expenses, and then at what the other person can genuinely afford, before deciding whether an order is appropriate and, if so, how much.

In reaching that decision, the Court will take into account:

• The income, expenses, liabilities and financial resources of both parties;

• The age and state of health of both parties;

• The length of the relationship and each party’s financial and non-financial contributions to it;

• The care arrangements for any children of the relationship;

• The economic effect of any family violence one party has subjected the other to or exposed them to- for example, being forced to leave the family home, or having employment or finances controlled or sabotaged; and

• Any other relevant factor.

Spousal maintenance can be paid periodically (for example, weekly or monthly) or as a lump sum, or a combination of both. Each option has different practical and tax consequences, so it’s worth getting advice on which structure suits your circumstances before an agreement or order is finalised.

Time limits and what happens if you miss one

If you were married, you must apply to the Court for spousal maintenance within 12 months of your divorce being granted. If you were in a de facto relationship, you must apply within 2 years from the date of separation.

If you’ve missed the deadline, you may still be able to apply but usually only with the Court’s permission (“leave”). The Court will only grant leave if it’s satisfied that:

• You (or a child of the relationship) would suffer hardship if leave were refused; or

• At the end of the time limit, you would have been unable to support yourself without an income-tested pension or benefit.

Urgent spousal maintenance

If you need financial help urgently and there isn’t time to work out exactly what a final order should look like, the Court can make an urgent maintenance order for whatever periodic amount it considers reasonable in the circumstances, pending a full hearing.

How we can help

At Empower Family Law & Mediation, we regularly act for both applicants and respondents in spousal maintenance matters. We can help you:

• Assess whether you’re likely to be eligible to claim, or liable to pay, spousal maintenance;

• Understand the risks and advantages of bringing an application;

• Negotiate an agreement without the need for Court proceedings, where possible; and

• Respond to a claim and protect your income and asset base if you’re the one being asked to pay.

If you need financial support from a former partner, or you’ve received a request or an application for spousal maintenance, please contact us on (03) 7020 6542.

Speak with us

Your first 30-minute consultation is free. Call (03) 7020 6542 or contact our team to discuss your circumstances and next steps.

Phone: (03) 7020 6542

Email: info@empowerfamilylaw.com.au

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Binding Financial Agreements (including Prenuptial Agreements)› Child Relocation› Child Support› Consent Orders› De Facto Relationships› Divorce› Family Mediation› Family Violence and Intervention Orders› Grandparents and Other Carers› Parenting and Child Custody› Property Settlement› Separation› Superannuation› Urgent Family Law Issues›

The duty runs both ways

Under the Family Law Act 1975 a person has a responsibility to financially assist their spouse or former de facto partner where that person cannot meet their own reasonable expenses from their personal income or assets. Where the need exists, both parties have an equal duty to support and maintain each other so far as they can, and that obligation can continue after separation and after divorce.

The extent of any support depends on what the other party can actually afford. Maintenance is not a penalty and it is not a share of the other person's income: it is the meeting point between one party's need and the other's capacity to pay.

What the Court weighs

The Court looks at the applicant's needs and the respondent's capacity to pay, considering for both of you:

• age and health
• income, property and financial resources
• ability to work
• whether you have the care of a child of the relationship, including the need to provide appropriate housing for that child
• the effect of any family violence
• what is a suitable standard of living, and
• whether the marriage or relationship has affected your ability to earn an income.

The Court also takes into account who the children live with, including adult children with a disability. These considerations sit in section 75 of the Act for marriages and section 90SF for de facto relationships.

Starting a new relationship changes things

This catches people out, so it is worth being direct about it.

If you remarry, your entitlement to maintenance ends, unless a court otherwise orders in special circumstances. That rule is in section 82 for spousal maintenance and section 90SJ for de facto maintenance.

If you enter a new de facto relationship rather than marrying, your entitlement does not automatically end, but the Court will take the financial relationship between you and your new partner into account when deciding whether you can adequately support yourself. In practice, a new relationship that materially improves your financial position is likely to affect what you receive.

If you are receiving maintenance and your circumstances are about to change, take advice before they do rather than after.

You do not have to wait for a divorce

Divorce and financial proceedings are separate processes, and maintenance does not depend on either being finished:

• Not divorced. You can apply for a spousal maintenance order without being divorced. Uncommonly, an order can even be sought while the marriage is intact and the parties have not separated.
• Divorced. You can apply after the divorce, but within 12 months of the divorce order taking effect. Out of time, you need the Court's leave.
• Marriage declared a nullity. You can still seek maintenance, within 12 months of the decree of nullity. Again, leave is needed out of time.
• De facto. Applications must be made within two years of the breakdown of the relationship, with leave required out of time.

If the need is immediate, the Act provides for urgent maintenance — section 77 for spousal maintenance and section 90SG for de facto maintenance — and there is a separate process for asking the Court to list an application urgently.

The Court information on this page reflects the published guidance of the Federal Circuit and Family Court of Australia on spousal and de facto maintenance, as at 26 October 2026. It is general information only, not legal advice, and does not replace advice about your own circumstances.