Australian law provides a legal framework for spouses of the relationship following divorce to protect the livelihood of the former husband or wife (or de-facto) who may be placed in financial hardship as a result of the marriage breakdown.
Under the Family Law Act, a spouse has the responsibility to provide financial support to the other spouse or de facto partner if the other spouse has no means to meet reasonable expenses from his/her personal income or assets. The obligation to support is mutual and will continue even after separation or divorce. However, there are certain conditions and requirements to meet before spouse support may be granted by the Court.
What do courts consider in their decision to give to give spouse support?
The Family Court or Federal Magistrates Court has the jurisdiction to deal with spouse support applications. Obviously, the parties are encouraged to reach an agreement as to how property is divided and how much support one will provide to the other spouse for maintenance.
If the parties cannot reach an agreement, then the spouse who needs support has to file for an Application for Spouse Support to the Court for the determination of the issue.
There are no specific criteria as to how much spouse support may be allowed to the applicant spouse. The Court will have to look at the reasonable “financial need” of the lower income earning spouse and the “financial capacity” of the higher income earning spouse as well as other attendant factors before the court finally decides.
The Court will have to consider the needs of the applicant as well as the respondent’s capacity to provide support based on the following criteria:
The age and health condition of both parties;
The income, property, and financial resources of the respondent spouse compared to the income and financial resources of the applicant spouse;
The present standard of living of parties;
The ability to work of both parties; and
The number of minor children (children below 18 years of age) including adult children, who require special support.
Requirements to apply for spousal support
The applicant spouse must observe the following requirements for the application for spouse support to be granted:
The Application for Spousal Support can be made right after separation and within 12 months from the date of divorce becomes final or 2 years after the breakdown of the de facto relationship. If you apply beyond these periods, you will have to apply for special permission of the court which may or may not be granted;
The applicant spouse is only entitled for support if he/she remains unmarried. However, if the applicant spouse starts a new relationship, the court will determine the financial position of the relationship, in particular whether the former spouse is unable to adequately support themselves and Complete Form 1 (Application for Final Orders) and a Form 13 (Financial Statement) and file both documents in the Family Court.
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