Spousal Maintenance: Who Can Claim It, How It Works and What to Do First

What is spousal maintenance?

Spousal maintenance is financial support paid by one former partner to the other after separation. It may be available if you cannot support yourself adequately and your former spouse or de facto partner has the reasonable capacity to contribute.

Spousal maintenance is separate from a property settlement. It is also different from child support. You may need advice about more than one of these issues at the same time.

The law does not automatically require one partner to support the other after separation. You must meet a legal test, provide financial information and show why support is needed.

Who can claim spousal maintenance?

A former spouse or de facto partner may claim maintenance if the legal requirements are met. The claim is not limited to women or primary carers. Either party may apply, depending on their financial circumstances.

You may be considering a claim if:

You have reduced or no income after separation.
You care for a child under 18 and your caring responsibilities limit your ability to work or train.
Your age or physical or mental health affects your capacity for appropriate employment.
Family violence, coercive control or economic abuse has affected your earning capacity or financial position.
You need short-term support while you re-establish yourself financially.
Your former partner has financial capacity to contribute to your support, having regard to both parties’ circumstances.

A person being asked to pay maintenance may also need advice. A former partner is not required to pay simply because they earn more. The court examines both parties’ needs, resources and capacity to contribute.

What is the legal test for spousal maintenance?

Both parts of the legal test must be established.

The court must be satisfied that:

You are unable to support yourself adequately.
Your former partner is reasonably able to support you.

The inability to support yourself adequately must also arise for an adequate reason recognised by the Family Law Act 1975.

The legislation identifies three circumstances in which a person may be unable to support themselves adequately:

Care of a child under 18: You have the care of a child of the relationship who has not reached 18.
Age or incapacity: Your age, physical health or mental health affects your ability to obtain appropriate gainful employment.
Another adequate reason: There is another sufficient reason why you cannot adequately support yourself.

These reasons are not automatic entitlements. You still need to show your financial need and your former partner’s reasonable capacity to pay.

The court may consider whether your income is enough to meet reasonable living expenses, whether you have access to property or other financial resources, and whether you could work or increase your income in the circumstances.

How is spousal maintenance different from child support?

Spousal maintenance supports a former partner. Child support supports a child.

Child support is generally assessed by reference to the needs of the child, each parent’s income and the amount of care provided. It may be managed through Services Australia or a private agreement.

Spousal maintenance concerns the financial relationship between former spouses or former de facto partners.

The two obligations can exist together. For example, a parent may seek spousal maintenance because caring for young children limits their work capacity, while also receiving child support for the children.

Child support may also be considered when a court assesses spousal maintenance. The court will look at the commitments each party has to support children and other people.

You should obtain advice before treating child support and spousal maintenance as interchangeable. They have different legal tests, assessment processes and time limits.

What factors does the court consider?

The court considers the whole financial picture, not just the parties’ salaries.

For married couples, the relevant factors are found principally in section 75(2) of the Family Law Act 1975. Similar factors apply to former de facto partners under section 90SF.

The court may consider:

The age and health of each party.
Each party’s income and earning capacity.
The physical and mental capacity of each party for appropriate employment.
Property, financial resources and access to funds.
The care of children under 18.
The need to provide appropriate housing for children under 18.
The reasonable standard of living for each party.
Necessary commitments to support yourself, children or another person.
Any eligibility for a pension, allowance or benefit.
The length of the relationship and its effect on earning capacity.
Whether maintenance would assist a party to undertake education, training or establish a business.
Each party’s contributions to the other’s income, earning capacity, property or financial resources.
Whether either party is cohabiting with a new partner and the financial circumstances of that relationship.
Existing or proposed property settlement orders.
Child support being paid or payable.
The terms of any binding financial agreement.
Any other fact or circumstance the court considers relevant.

A new partner’s circumstances do not automatically end or create a maintenance claim. They are one part of the financial assessment. The court may consider the income, resources and commitments connected with the new relationship.

How do the 2025 Family Law Act amendments affect maintenance?

The court must expressly consider the effect of family violence and the need of a party caring for a child under 18 to provide appropriate housing for that child when assessing maintenance.

The amendments to the Family Law Act 1975 require the court to consider the effect of family violence to which one party subjected or exposed the other party. This includes its effect on the other financial factors relevant to maintenance.

Family violence may have an economic effect. For example, it may have:

Prevented or disrupted employment.
Limited access to money or bank accounts.
Prevented education or training.
Created financial dependence.
Affected physical or mental health.
Reduced earning capacity after separation.
Caused a party to leave employment or housing.

The amendments also require the court to consider the need of a party who cares for a child under 18 to provide appropriate housing for that child.

That may include the practical cost of securing stable accommodation, such as rent, mortgage commitments, moving costs and the size or location of suitable housing.

The amendments do not guarantee a particular result. They ensure that these issues form part of the court’s express assessment where they are relevant.

You can read the current Family Law Act 1975 and the Australian Government’s information about the 10 June 2025 family law changes.

What are the time limits for a spousal maintenance claim?

Strict time limits apply. Obtain advice well before the time limit expires.

For married couples

Proceedings generally need to be started within 12 months after the divorce becomes final.
A maintenance claim may be possible before divorce, including after separation.
Proceedings started after that period require the court’s leave (permission).
The court will usually require a proper explanation, including whether refusing permission would cause hardship.

For former de facto couples

Proceedings generally need to be started within 2 years after the de facto relationship ended.
Proceedings started after that period require the court’s leave (permission).

The date of separation, the date a de facto relationship ended and the date a divorce became final can be important. Do not rely on an assumption about when the time limit started and seek advice well before the relevant date.

How long does spousal maintenance last?

Maintenance may be ordered for a fixed period, until a particular event or until further order.

The length of support depends on the circumstances. A court may make an order for:

A weekly, monthly or other periodic payment.
A defined period while a person retrains or obtains employment, or until a child reaches an age or stage, such as starting school, when the person has greater capacity to retrain or return to work.
A lump sum.
A transfer or settlement of property for maintenance purposes.
A payment secured in a way the court considers appropriate.

A maintenance order can be varied, suspended or discharged if circumstances change. This may include a substantial change in income, health, care arrangements, financial resources or the needs of the person receiving support.

A maintenance order generally ceases on the death of either party and usually ceases if the recipient remarries, subject to limited exceptions. Arrears that accrued before the order ended may still be recoverable.

Can spousal maintenance be paid as a lump sum?

Yes. A lump sum may be appropriate in some cases, but it requires careful advice.

In some circumstances, a lump sum may provide greater certainty and reduce the need for ongoing financial dealings between former partners.

Periodic payments may be more suitable where:

The recipient has ongoing living expenses.
The payer has reliable income.
The financial circumstances may change.
The parties need flexibility.
A short-term arrangement is appropriate.

A lump sum or property transfer may have consequences for the property settlement, taxation, benefits and future financial security. The order or agreement should clearly identify whether a payment is for maintenance, property settlement or both.

What should you do first if you need, or are being asked to pay, spousal maintenance?

Start with a clear financial assessment and a strategy. Do not agree to an amount before understanding the legal position.

Gather:

Recent payslips and income records.
Bank and investment statements.
Details of property and financial resources.
A realistic schedule of living expenses.
Information about liabilities.
Details of child-care arrangements and housing costs.
Medical or other evidence relevant to your capacity to work.
Information about family violence or economic abuse, where relevant.
Any existing orders, agreements or financial agreements.

You should also check the applicable time limit and consider whether spousal maintenance needs to be addressed alongside a property settlement, child support or urgent financial arrangements.

Angie Grigg is a Law Society of NSW Accredited Specialist in Family Law with more than 20 years’ experience. She provides strategic family law advice to clients dealing with complex financial and parenting issues across Northern NSW, the Northern Rivers, Tweed Heads, the Gold Coast and Australia wide.

How can Angie Grigg Family Law help?

We can help you replace financial uncertainty with a clear plan.

We can advise and assist with:

Assessing whether you may have a claim for spousal maintenance.
Responding to a request or application for maintenance.
Preparing financial information and supporting material.
Negotiating periodic payments or a lump sum.
Addressing family violence and its economic effect.
Considering housing needs for children under 18.
Coordinating maintenance advice with property settlement and child support issues.
Preparing consent orders or representing you in Federal Circuit and Family Court proceedings.

You do not need to react to every demand. You need to understand your position, protect your financial interests and decide the next step carefully.

Frequently asked questions

What is spousal maintenance?

Who can claim spousal maintenance?

What is the legal test for spousal maintenance?

The court must be satisfied that you are unable to support yourself adequately and that your former partner is reasonably able to support you. The inability to support yourself adequately must also arise for an adequate reason recognised by the Family Law Act 1975, such as care of a child under 18, age or incapacity, or another adequate reason.

What are the time limits for a spousal maintenance claim?

For married couples, proceedings generally need to be started within 12 months after the divorce becomes final. For former de facto couples, proceedings generally need to be started within 2 years after the de facto relationship ended. Proceedings started after that period require the court’s leave (permission).

Can spousal maintenance be paid as a lump sum?

Yes. A lump sum may be appropriate in some cases, but it requires careful advice. Periodic payments may be more suitable where the recipient has ongoing living expenses, the payer has reliable income, or the financial circumstances may change. A lump sum or property transfer may have consequences for the property settlement, taxation, benefits and future financial security.

Take the next step with a clear strategy

Spousal maintenance decisions can affect your financial security for years. Do not leave them to chance.

You do not need to react to every demand. You need a clear understanding of your position, your options and the next practical step.

For advice about spousal maintenance in Northern NSW, the Gold Coast or elsewhere in Australia, contact Angie Grigg Family Law for a confidential consultation.

Need advice about spousal maintenance?

Book a confidential consultation with Angie Grigg