We know a lot about it from American courtroom dramas. Alimony is the source of vicious argument and acrimony between many a set of warring TV spouses. And yet. the word alimony doesn’t have a place in Australian family law, though the basic notion behind it does. Just like in the US, Australian family law says that a spouse or de facto partner should support a partner who is not able to support themselves. This applies not only during the relationship but after separation. The entitlement, in Australia, is called ‘spousal maintenance’ or ‘de facto partner maintenance. It is separate and different from a parent’s entitlement to receive child support payments. Child support is payable for the support of children. Spousal maintenance is about the support of a significantly poorer spouse or former de facto partner. Child support and spousal maintenance can be paid at the same time.
Spousal maintenance is usually paid in the form of a regular weekly, fortnightly, or monthly payment. Strictly speaking, it might even be payable in a relationship that is still ongoing, if one partner has for some reason stopped providing money to support the dependent partner. But in most cases, spouse maintenance is usually paid or retrospectively ordered to be paid, from the date of separation up until the property settlement is implemented: that is when the total pool of the property of the relationship is split between the parties. In slightly more unusual cases, however, it might be paid for a much longer period–to allow, say, for one spouse to perform primary child-caring responsibilities in a big family; or to complete study before being able to return to the workforce; or even for an indefinite period, if, say, a more vulnerable party will never be able to support themselves.
There are two pre-conditions to the entitlement to spousal maintenance: 1. that one party cannot provide for their reasonable financial needs and 2. that the other has capacity to do this.
In terms of what is reasonable here, a court would look at the lifestyle and living standards of the couple over the course of the relationship, and then compare this with the lifestyles and living standards of both partners after separation. Unlike the American case for alimony, where a court is concerned to ‘even-up the partners’ lifestyles, possibly for a lifelong period, the Australian entitlement to spouse maintenance is more limited. Even so, if an Australian case went to a hearing, a court would be concerned about significant disparity between the lifestyles of the partners after separation. If one party lives extremely well and the living standard of the other has plummeted since separation, this set of circumstances provides a good basis for an order for spouse maintenance (even if, by other people’s standards, the overall lifestyles of both parties seem pretty high). Unfortunately, such differences in the lifestyles after separation are not difficult to find.
Most couples, and especially if they know about the existence of the obligation to pay and the right to receive spousal maintenance, come to agreement about it privately. But some former partners seek to punish their partners by cutting-off or refusing to provide financial support, even for essential services. There are those that engage in the ‘freeze and starve’ technique of ‘negotiation’. This is where the partner with more money withholds money for paying say, electricity bills or the rent to force a financially weaker partner to agree to their demands in their family law dispute. This can be especially difficult for older spouses, mostly women, and where there may be chronic health conditions, disabilities, or poor English language skills.
If you need support, and your former partner is refusing to provide it, and the two pre-conditions are met in your circumstances, you can apply to the family courts for orders that your former partner must make spouse maintenance payments to you. You can do this as soon as the financial support is withdrawn but you must do it before within 12 months of your divorce becoming final or within two years of the end of your de facto relationship. (After this period, you will need to be able to convince the court that there are special circumstances before you will be permitted to proceed.) If you are still married, and you don’t already have a property settlement or binding financial agreement, you can apply anytime, even if you have been separated for some time. If you are in particularly desperate circumstances, you can apply for the orders to be made urgently.
You can apply with the assistance of a lawyer, either privately, or if you are eligible, with the assistance of Legal Aid. You may also apply to the court for orders also as a self-represented person. For more detailed information see the family court information about spousal maintenance.
It is a very good idea to get legal advice on your obligation to pay or the right to receive spousal maintenance under the law. You should take the opportunity in taking this advice to discuss the issue of property settlement if you haven’t already taken advice on this. Next, the most sensible course of action is to try to negotiate a private arrangement with your former partner for its payment. Considering the difference in bargaining power that is likely to be involved in such disputes, we recommend seeking assistance from a mediator to help you come to this agreement. You can pay a private mediator to help you with this or you might contact the more affordable community-based family dispute resolution services such as Relationships Australia, Uniting, Anglicare, and CatholicCare.
The right to spousal maintenance is one of the least well-known and least used remedies in Australian family law. It flows from the respect that Australian family law has for the principle that partners in a marriage or long-term relationship should provide for and support each other. It is separate and different from both child support and property settlement. It can be the bridge to the receipt of funds from a property settlement. And it certainly serves to smooth the way for the more vulnerable party in the very financially-difficult early times immediately after a relationship breakdown.