What is alimony in Australia? A short legal guide

What is alimony? You may have heard the term. It’s used to describe circumstances where post-separation, one person pays their former partner money. Most commonly, you usually hear about payments being made weekly.

By Breanna Deakes, Associate at Roger Fritz LLP. 

So is alimony even a thing in Australia? How do alimony payments apply in an Australian context? Keep reading for a simple legal guide.

What is alimony in Australia?

Firstly, we don’t use the term ‘alimony’ in Australia. In Australia, alimony payments are referred to as spousal maintenance, or simply ‘maintenance.’ Spousal maintenance can be paid in many ways and isn’t restricted to weekly payments. 

In this article, I refer to the Family Law Act 1975 (Cth) (“the Act”). However, if you’re in Western Australia, and are in a de facto relationship, the Family Court Act 1997 (WA) applies and has similar (if not identical) provisions. Any reference to the Court means both the Federal Circuit Court and Family Court of Australia and the Family Court of Western Australia.

Secondly, the Act doesn’t define spousal maintenance. The case law discusses spousal maintenance to be the payment of monies from one spouse to another, where the receiving spouse is unable to adequately support themselves and the paying spouse has the ability to pay.

Furthermore, the purpose of spousal maintenance is to allow the lower-income party (or no-income party) to “get back on their feet” financially. This might mean a party is eligible to receive support for a period to allow them to:

• re-enter the workforce;
• retrain; or
• continue in their parenting role.

Will I have to pay spousal maintenance?

All things considered, it depends on many factors.

• A person seeking spousal maintenance will need to establish that they have a need for it.
• Then, they’ll need to establish that the other party has the capacity to pay.

Moreover, each case will be unique, so it might be helpful to get independent legal advice specific to your circumstances.

How can I get spousal maintenance?

If you don’t agree upon spousal maintenance and you already have financial proceedings before the Court, you’ll need to file a separate application for spousal maintenance.

Correspondingly, if you don’t have financial proceedings before the Court, you can file an application for spousal maintenance as part of your application for financial proceedings.

Spousal maintenance can be an interim (short-term) measure for a specified period of time or as final orders. Orders can be made for:

• urgent spousal maintenance; 
• a lump sum amount of spousal maintenance; and
• for periodic payments of spousal maintenance.

What factors are considered in spousal maintenance applications?

The factors the Court considers are set out in section 75(2) of the Act. They’re the same factors the Court must consider when assessing whether a party should receive a percentage adjustment for their future needs in property settlement matters. Some of those factors are:  

1. the age and state of health of each party;
2. the income, property and financial resources of each party and the physical and mental capacity of each of them for appropriate gainful employment;
3. whether either party has the care of a child of the marriage under 18;
4. the commitments of each of the parties that are necessary to enable them to support themselves or anyone else they have a duty to maintain;
5. the eligibility of either party for a pension, allowance or benefit;
6. the superannuation of the parties;
7. the party’s standard of living;
8. whether maintenance would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
9. the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
10. the duration of the relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
11. the need to protect a party who wishes to continue that party’s role as a parent;
12. if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
13. any Investment Funds that a party has provided is to provide, or might be liable to provide in the future, for a child of the relationship; and
14. the terms of any financial agreements that are binding on the parties.

A final word

As you can see, there are many considerations the Court must consider when determining whether spousal maintenance is payable. The above list is just some of those considerations. The Court takes into account the above considerations and looks at individual circumstances.

Furthermore, it’s imperative that if you consider you need additional funds to support yourself that you obtain legal advice. Similarly, if you’re a higher income earner in comparison, consider obtaining legal advice as to:

• whether someone can bring a spousal maintenance claim against you, and
• the options available to you.

Our skilled family lawyers can provide you with expert advice to guide you through what alimony is and how it works in Australia. Request a call back via the form below or call our friendly team directly.