In certain circumstances, where a marriage or de facto relationship has ended, one party may have a claim against the other party for spousal maintenance. This guide provides an overview of the spousal maintenance regime. It is important to understand however, that each individual case is different.

1. Spousal maintenance
William Sloan, accredited specialist family lawyer
In certain circumstances, where a marriage or de facto relationship has ended, one party may have a
claim against the other party for spousal maintenance.
This guide provides an overview of the spousal maintenance regime.
It is important to understand however, that each individual case is different.
Applicable legislation..............................................................................................................................2
Eligibility for spousal maintenance.........................................................................................................3
One party unable to adequality support themself .............................................................................3
Capacity of other party to provide support........................................................................................3
Time limit ............................................................................................................................................4
Financial Agreements..........................................................................................................................4
Amount of spousal maintenance............................................................................................................5
Form of spousal maintenance.................................................................................................................6
Documents to be provided .....................................................................................................................7
Collection of spousal maintenance.........................................................................................................8
Duration of spousal maintenance...........................................................................................................9
Further information ..............................................................................................................................10

2. Spousal maintenance
William Sloan, accredited specialist family lawyer 2
Applicable legislation
In Western Australia, there is different legislation that applies in determining claims for spousal
maintenance, depending upon whether the parties were married or in a de facto relationship:
• For parties with a connection to WA, who were in a de facto relationship, the legislation that
applies is the Family Court Act 1997 (WA). This is available at www.legislation.wa.gov.au;
• For married parties, the legislation that applies is the Family Law Act 1975 (Cth). This is available
at www.legislation.gov.au.
Although different legislation applies, in most respects the content of the legislation is similar.

3. Spousal maintenance
William Sloan, accredited specialist family lawyer 3
Eligibility for spousal maintenance
Where parties to a marriage or de facto relationship have separated, there is legislation that applies
in determining their entitlements.
Amongst those entitlements is, in certain circumstances, a potential to claim spousal maintenance.
The legislation provides:
“A party to a marriage [or de facto relationship] is liable to maintain the other party, to the
extent that the first mentioned party is reasonably able to do so, if, and only if, that other party
is unable to support herself or himself adequately…”1
In simplified terms, there are two matters that must be satisfied for a party to be eligible to claim
spousal maintenance:
• the party claiming the maintenance is unable to support themself; and
• the other party has a capacity to provide support.
One party unable to adequality support themself
Assessing the capacity of a party to adequately support themself involves a consideration of:
• The income or earning capacity of that party; and
• The reasonable expenses of that party.
That comparison of income and expenses will result in one of two possible outcomes:
• The party has a surplus (income greater than expenses) – in which case, they will not be eligible
to claim spousal maintenance; or
• The party has a deficit (expenses greater than income) – in which case, the first limb will be
satisfied (and consideration can then turn to the second limb – see below).
Capacity of other party to provide support
If the first limb has been satisfied (see above), then consideration can turn to the second limb.
This involves considering the income and expenses of the party who the claim is being made against.
There are two potential outcomes:
• The party has a deficit (expenses greater than income) – in which case, there will not be a capacity
to provide support; or
• The party has a surplus (income greater than expenses) – in which case, there will be a capacity
to provide support.
If both limbs can be satisfied, then consideration shifts to an analysis of the amount of spousal
maintenance that is appropriate (see below).
1
Sub-Section 72 (1) of the Family Law Act 1975 (Cth) (the legislation that applies in respect of parties who have
been married). The Family Court Act 1997 (WA) is the legislation that applies in respect of parties who have a
connection with WA, who have been in a de facto relationship.

4. Spousal maintenance
William Sloan, accredited specialist family lawyer 4
Time limit
There is a time limit for making an application for spousal maintenance, as follows:
• For parties who have been married, any application for spousal maintenance must be made not
later than 12 months after the date on which the Divorce Order took effect;2
• For parties who have a connection to WA, who have been in a de facto relationship, any
application for spousal maintenance must be made within 2 years after the relationship ended.3
If the time limit has expired, then it is possible to apply to the Court seeking leave to commence
proceedings out of time. The granting of leave is discretionary.
Financial Agreements
If the parties to a marriage or de facto relationship have entered into a Financial Agreement, then it is
possible that the Agreement might contain clauses dealing with spousal maintenance.
Such clauses might operate to prevent a party from making a claim for spousal maintenance.
2
Sub-Section 44 (3) of the Family Law Act 1975 (Cth)
3
Sub-Section 205ZB (1) of the Family Court Act 1997 (WA)

5. Spousal maintenance
William Sloan, accredited specialist family lawyer 5
Amount of spousal maintenance
Parties can negotiate directly in relation to the amount (if any) of spousal maintenance to be paid.
If the parties cannot reach agreement, then the party seeking the maintenance can make an
Application to the Family Court.
The Court then has responsibility for determining the amount (if any) of spousal maintenance to be
paid.
There is not a standard or formula-based amount of spousal maintenance.
Instead, the Court determines the appropriate amount on a case-by-case basis having regard to the
factors in the individual case.
Factors that have a bearing include:
• What is the amount of the deficit that the party seeking the maintenance has (see above);
• What is the amount of the surplus that the other party has (see above).

6. Spousal maintenance
William Sloan, accredited specialist family lawyer 6
Form of spousal maintenance
Spousal maintenance can be paid as:
• A periodic amount (for example, weekly or monthly); or
• A lump sum amount.
In most circumstances, there is a preference for payments to be periodic (rather than lump sum).
Another form in which spousal maintenance can be provided is what is sometimes described as a
“Section 77A allocation”. This can occur where spousal maintenance is being resolved in combination
with the alteration of property interests. For example:
• One party might retain ownership of a house;
• Part of the value of the house may be labelled so that it constitutes an alteration of property
interests;
• The remainder of the value of the house may be labelled so that it constitutes a provision for
spousal maintenance.
This may be of assistance in circumstances where the property settlement entitlements of the party
alone might not have been sufficient to enable that party to retain the house.

7. Spousal maintenance
William Sloan, accredited specialist family lawyer 7
Documents to be provided
Where one party is making a claim for spousal maintenance, there is an obligation on both parties to
provide certain documents.
In the first instance, the documents that each party must provide to the other party are as follows:4
• Most recent Income Tax Return;
• Bank records for the previous 12 months;
• 3 most recent payslips;
• Business Activity Statements for the previous 12 months (if the party owns a business);
• Any other document relevant to the income and expenses of the party.
4
Paragraph 4 (5) (a) of Part 1 of Schedule 1 to the Family Law Rules 2004 (Cth) available at:
www.legislation.gov.au

8. Spousal maintenance
William Sloan, accredited specialist family lawyer 8
Collection of spousal maintenance
Whilst the Family Court is responsible for determining the amount (if any) of spousal maintenance to
be paid, the collection of the maintenance usually occurs elsewhere.
The Commonwealth Government agency known as Services Australia has a power to collect spousal
maintenance.
However, Services Australia does not automatically begin collecting spousal maintenance merely
because the Family Court has made an Order determining the amount to be paid.
Instead, one of the parties needs to register the Court Order with Services Australia.
Once registration has occurred, Services Australia can then commence collecting the maintenance.

9. Spousal maintenance
William Sloan, accredited specialist family lawyer 9
Duration of spousal maintenance
If an Order for periodic spousal maintenance is made, then it may include a clause specifying for how
long the payments are to continue.
The legislation also specifies certain circumstances in which the obligation to pay spousal maintenance
will end, namely:5
• If the recipient of the maintenance dies;
• In most circumstances, if the payer of the maintenance dies;
• In most circumstances, if the recipient of the maintenance re-marries.
5
Section 82 of the Family Law Act 1975 (Cth)

10. Spousal maintenance
William Sloan, accredited specialist family lawyer 10
Further information
This guide is intended to provide general information about spousal maintenance.
If you would like further information, please contact:
William Sloan
Director
Kim Wilson & Co
Telephone: (08) 6380 3900
Email: william.sloan@kimwilson.com.au

11. Spousal maintenance
William Sloan, accredited specialist family lawyer 11
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