Spousal maintenance — financial support paid by one former partner to the other following separation — is an aspect of Australian family law that is frequently misunderstood by separating couples. Unlike child support, which is calculated according to a formula set out in legislation, spousal maintenance involves a more discretionary assessment of need and capacity that depends heavily on the specific financial circumstances of both parties. Understanding how the system works, who is eligible, and what factors influence the outcome is important for anyone navigating separation in New South Wales.

The legal basis for spousal maintenance

Section 72 of the Family Law Act provides that a party to a marriage is liable to maintain the other party to the extent they are reasonably able to do so if the other party is unable to support themselves adequately. The same principles apply to de facto partners in states that have adopted the relevant provisions of the Family Law Act, which includes New South Wales. The obligation is not automatic — it arises only where one party cannot adequately meet their own reasonable needs from their own resources, and the other party has the financial capacity to contribute to those needs.

Obtaining advice from an experienced family law firm in Illawarra is the essential first step in understanding whether you have a maintenance entitlement or obligation and in assessing what a court would be likely to order given the specific circumstances of your separation. Many people who have a legitimate need for spousal maintenance do not pursue it because they are unaware of their entitlement, while others who have no genuine obligation pay maintenance because they have not sought advice about the strength of their position and their ability to resist an unfounded claim.

The court assesses spousal maintenance claims by considering two primary questions: first, whether the applicant is unable to adequately support themselves; and second, whether the respondent is reasonably able to provide support. Both elements must be established for a maintenance order to be made. A party who cannot support themselves due to caring for young children, disability, age, or an inability to find adequate employment may be eligible, but only if the other party has sufficient income or assets beyond their own reasonable needs to meet that obligation.

Maintenance is not a lifelong entitlement in most cases. The court aims to provide support for a reasonable transition period that gives the recipient the opportunity to achieve self-sufficiency through employment, retraining, or the management of assets received in the property settlement. Orders are typically time-limited and may be reduced or terminated if the recipient’s circumstances improve, if they form a new domestic relationship, or if the paying party’s circumstances change significantly in a way that reduces their capacity to continue paying.

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Factors the court considers

The factors considered in assessing a maintenance claim include: the age and health of both parties and their effect on earning capacity; the income, property, and financial resources of each party; the reasonable cost of living for each party; the parties’ commitments to support themselves, dependent children, and any other person either party has a legal obligation to support; any factors that affect the applicant’s capacity to earn income, including caring responsibilities, age, qualifications, and the length of time the applicant has been out of the workforce.

Contributions made during the relationship — including non-financial contributions such as homemaking and primary childcare — are relevant to the overall sense of the arrangement rather than being determinative of maintenance entitlement, which focuses primarily on present and future need and capacity rather than past contribution. However, where one party has significantly limited their career development and earning capacity through the choices made during the relationship — for example, by pausing or abandoning employment to care for children — this history is relevant to the assessment of their current and future earning capacity and financial need.

The standard of living enjoyed during the relationship is also a relevant consideration, though it does not set a guaranteed entitlement. Where both parties enjoyed a high standard of living during the marriage or de facto relationship and one is left with substantially reduced financial capacity following separation, this disparity is a factor — among many — in assessing whether maintenance is appropriate and at what level. The court is not attempting to precisely equalise the post-separation living standards of the parties, but significant and unreasonable disparity is a relevant consideration.

Urgency and interim maintenance

Where a party faces immediate financial hardship following separation and cannot wait for the full resolution of their property and maintenance matters, urgent or interim maintenance can be applied for through the court. The threshold for interim maintenance is lower than for final orders, reflecting the urgency of the situation and the fact that only limited financial evidence is available at the interim stage. Interim orders are not a final determination and may be varied when the full financial picture is assessed at a later stage of the proceedings.

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Spousal maintenance agreements can be reached by negotiation without court intervention, and a negotiated outcome is generally preferable to litigation in terms of cost, time, and the ability to tailor an arrangement to the parties’ specific circumstances. Where both parties obtain proper legal advice and negotiate in good faith, a maintenance arrangement formalised as consent orders or a binding financial agreement provides clarity and enforceability without requiring either party to undergo the stress and expense of contested court proceedings.

Varying and ending maintenance

Maintenance orders are not necessarily permanent. Either party can apply to the court to vary or discharge a maintenance order if there has been a significant change in circumstances since the order was made — for example, if the recipient obtains employment, receives an inheritance, or forms a new relationship; or if the payer loses their job, suffers a significant health setback, or has a substantial change in their financial position. Courts approach variation applications by reassessing the current circumstances of both parties rather than being bound by the assumptions on which the original order was made, making regular review of maintenance arrangements worthwhile for both parties as their lives evolve following separation.

Link 1: https://www.hulsefamilylaw.com.au/ | family law firm in Illawarra

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