Divorce and separation can be a difficult and emotional time for all parties involved. In addition to the emotional strain, there is also the complex legal process of property settlement to consider. One area of particular concern for many separating couples is spousal maintenance. In this post, we will provide an overview of how spousal maintenance fits into the broader process of property settlement in Australia, and provide guidance on how to negotiate spousal maintenance as part of a property settlement agreement.
Spousal Maintenance in Australia: The Basics
Spousal maintenance, also known as alimony or spousal support, refers to ongoing financial support paid by one former spouse to the other. In Australia, spousal maintenance is governed by the Family Law Act 1975, which outlines the circumstances in which a person may be entitled to spousal maintenance.
Under the Act, a person may be entitled to spousal maintenance if they are unable to adequately support themselves financially following separation, and the other spouse has the financial capacity to provide support. Factors that may be considered when determining whether a person is unable to support themselves include their age, health, earning capacity, and care responsibilities for children.
Spousal maintenance is typically paid on a periodic basis and may continue for a fixed term or until a specific event occurs (such as remarriage or cohabitation with a new partner). The amount and duration of spousal maintenance will depend on the specific circumstances of the case, including the needs of the recipient and the financial capacity of the paying spouse.
Property Settlement in Australia: The Process
Property settlement refers to the division of assets and liabilities between separating spouses. In Australia, property settlement is governed by the Family Law Act 1975, which outlines the principles that the court must consider when making property settlement orders.
Under the Act, the court must consider the following factors:
- The assets and liabilities of the parties
- The contributions made by each party, including financial and non-financial contributions and contributions as homemaker and parent
- The future needs of each party, including their age, health, earning capacity, care responsibilities, and financial resources
- Whether a proposed property settlement is just and equitable in all the circumstances
Negotiating Spousal Maintenance as Part of Property Settlement
When negotiating spousal maintenance as part of a property settlement agreement, it is important to consider the following factors:
Financial Needs and Capacity
The first step in negotiating spousal maintenance is to consider the financial needs and capacity of both parties. This will involve an assessment of the current and future financial needs of the recipient, including their age, health, earning capacity, and care responsibilities. It will also involve an assessment of the financial capacity of the paying spouse, including their income, assets, and liabilities.
Contributions
Another important factor to consider is the contributions made by each party to the relationship. This will include an assessment of financial contributions, such as income earned and assets acquired during the relationship, as well as non-financial contributions, such as caring for children and maintaining the family home.
Future Needs
When negotiating spousal maintenance, it is important to consider the future needs of both parties. This may include their capacity to earn income in the future, their future care responsibilities, and their ability to provide for their own needs in retirement.
Just and Equitable
Ultimately, any proposed spousal maintenance agreement must be just and equitable in all circumstances. This means that the agreement must take into account all relevant factors, including the financial needs and capacity of both parties, their contributions to the relationship, and their future needs.
Conclusion
Spousal maintenance can be a complex and emotional issue for separating couples, but by understanding the legal principles and guidelines outlined in the Family Law Act 1975, negotiating a fair and equitable agreement can be achieved.
ALWAYS KNOW YOUR RIGHTS AND KNOW WHERE YOU STAND
By consulting one of our accredited family law mackay specialists.It is important to note that spousal maintenance is not automatic and is not awarded in every case. It will depend on the specific circumstances of the case, including the financial needs and capacity of both parties, their contributions to the relationship, and their future needs.
According to the Australian Bureau of Statistics, in 2019, the divorce rate was 2.2 divorces per 1,000 people. This represents a decrease in the divorce rate since 2018, which was 2.3 divorces per 1,000 people. The median duration of marriage to divorce was 12.3 years, with the median age of divorce being 45.9 years for males and 43.3 years for females.
When negotiating spousal maintenance, it is important to seek legal advice to ensure that any proposed agreement is fair and equitable for both parties. A family law solicitor can provide guidance on the legal principles and guidelines, as well as advice on the likely outcome of any proposed agreement.
In conclusion, negotiating spousal maintenance as part of a property settlement agreement requires a thorough understanding of the legal principles and guidelines outlined in the Family Law Act 1975. By considering the financial needs and capacity of both parties, their contributions to the relationship, and their future needs, a fair and equitable agreement can be achieved. Seek legal advice to ensure that any proposed agreement is fair and legally binding.
FAQ
When is spousal maintenance awarded?
Spousal maintenance is not automatic and is awarded based on the specific circumstances of the case, including the financial needs and capacity of both parties, their contributions to the relationship, and their future needs.
How is spousal maintenance different from a property settlement?
Spousal maintenance is separate from a property settlement, which divides the assets and liabilities of the relationship. Spousal maintenance is ongoing financial support, while a property settlement is a one-off division of assets.
Can spousal maintenance be agreed upon without going to court?
Yes, spousal maintenance can be agreed upon without going to court. Parties can negotiate and agree upon a spousal maintenance arrangement as part of a property settlement agreement.
How long does spousal maintenance last?
The duration of spousal maintenance will depend on the specific circumstances of the case. It may be a one-off payment or ongoing payment for a set period or until a specified event occurs, such as the recipient finding employment.
What if one party fails to comply with a spousal maintenance order?
If one party fails to comply with a spousal maintenance order, the other party can take legal action to enforce the order, including applying to the court for enforcement or seeking legal advice.
