Separation can leave one partner suddenly without an income, while bills, rent and everyday living costs keep coming.
If your ex-partner has cut off financial support and you cannot cover your reasonable needs, waiting months for a final property settlement is not always an option. This is where urgent spousal maintenance comes in.
Below, our family lawyers explain what spousal maintenance is, who can apply, how urgent applications work, and what the court looks at before making a decision.
What Is Spousal Maintenance?
Spousal maintenance is financial support one former partner pays to the other after a marriage or de facto relationship ends. In the United States this is called alimony, but Australian law uses the term spousal maintenance, sometimes referred to as spousal support.
It is separate from child support, which is paid specifically to help raise children. Spousal maintenance exists to support the ex-partner themselves, where one person cannot adequately support themselves and the other has the financial capacity to help.
Who Can Apply for Spousal Maintenance?
You may be entitled to spousal maintenance if you cannot meet your reasonable living expenses and your former partner has the ability to pay. Common circumstances include caring for young children, age, illness, limited work skills, or having been out of the workforce during the relationship.
Both married and de facto partners can apply. The threshold test under section 72 of the Family Law Act 1975 asks whether the applicant can adequately support themselves, and whether the other party has the capacity to contribute.
What Does the Court Consider When Deciding Spousal Maintenance?
The court weighs up a range of factors under section 75(2) of the Family Law Act, including each party’s age, health, income, property, financial resources, and earning capacity. It also looks at care of children, the length of the relationship, and whether one partner sacrificed career opportunities to support the household.
The aim is not to equalise incomes. It is to prevent one partner from being left in genuine hardship while the other has more than enough to get by.
How to Apply for Urgent Spousal Maintenance
If you are in immediate financial hardship, you can apply for urgent spousal maintenance rather than waiting for a final hearing. This is sometimes confused with interim maintenance, but the two are treated differently by the court.
An urgent application is for a genuine, pressing need, where there may not be time to gather full financial evidence. Because of this, urgent orders are usually short term, covering only a defined period until a fuller interim or final maintenance order can be considered.
To apply, you will generally need to:
- File an Initiating Application with the Federal Circuit and Family Court of Australia
- Prepare a sworn affidavit setting out your financial circumstances and the urgency of your need
- Complete a Financial Statement disclosing your income, expenses, assets and debts
- Attend a court hearing, where the judge will decide whether urgent relief is warranted
Because urgent applications rely on limited evidence, getting legal advice before filing makes a real difference to how the application is prepared and presented.
Types of Spousal Maintenance
There are generally four types of spousal maintenance orders:
- Urgent maintenance, for short term relief where there is an immediate need
- Interim maintenance, ordered while the matter is ongoing but the need is not classed as urgent
- Lump sum maintenance, a one-off payment, often used where periodic payments have proven unreliable
- Final maintenance, decided once the court has considered the full property settlement and financial circumstances of both parties
Spousal Maintenance vs Child Support
Spousal maintenance and child support are assessed separately, even though both can apply at the same time. Child support is calculated to meet the needs of the children, while spousal maintenance is about the financial needs of the former partner.
If you have children, it’s worth speaking to the Child Support Agency alongside seeking advice on spousal maintenance, since the two can affect each other’s calculations.
Time Limits for Spousal Maintenance Applications
There are strict time limits for making an application. If you were married, you must apply within 12 months of your divorce order taking effect. If you were in a de facto relationship, the application must be made within two years of the relationship breaking down.
Applications made outside these time limits are not automatically barred. You can ask the court for leave to apply out of time, but this depends on your specific circumstances and is not guaranteed.
De Facto Maintenance: Does It Work the Same Way?
De facto maintenance operates on the same principles as spousal maintenance for married couples, under Part VIIIAB of the Family Law Act. The same need and capacity to pay test applies, and the same section 75(2) factors are considered.
The main practical difference is the time limit, two years from separation for de facto couples, rather than 12 months from a divorce order.
How Long Do Maintenance Payments Last?
Spousal maintenance is not designed to be a lifelong arrangement. It’s often temporary, intended to help one partner get back on their feet, whether that means completing study, re-entering the workforce, or reaching a final property settlement.
The court can order maintenance for a set period, or leave an order open until it’s varied or ended by a later order.
Do You Still Receive Spousal Maintenance If You Start a New Relationship?
Generally, you are not entitled to spousal maintenance once you remarry, unless the court orders otherwise. Entering a new de facto relationship does not automatically end maintenance, but it is a factor the court can take into account if your former partner applies to vary or end the arrangement.
Getting Legal Advice and Legal Aid Support
Spousal maintenance applications, particularly urgent ones, depend heavily on how well your financial position is documented and presented. It is important to get legal advice early, whether you are applying for maintenance or responding to an application made against you.
If you cannot afford a private lawyer, legal aid may be able to assist, or you may be eligible for a reduced court filing fee. Many family law firms, including ours, also offer a free initial consultation so you can understand your options before committing to legal fees.
Speak With a Family Lawyer About Spousal Maintenance
If you are struggling financially after separation, you don’t have to wait for a final property settlement to get help. Our spousal maintenance team at Collective Family Law Group can advise you on urgent, interim and final maintenance applications, and guide you through what the court will expect from your evidence.
Read more on whether Australia has an equivalent to alimony, or contact us today to book a consultation and discuss your situation.
This is general information, not legal advice. For guidance on how the law applies to your circumstances, speak with a family lawyer or contact Legal Aid Queensland or the Federal Circuit and Family Court of Australia.
Frequently Asked Questions
How do I divorce my wife if I have no money?
Australia has a no-fault divorce system, and you do not need significant funds to apply. The court charges a filing fee, but a reduced fee is available for people experiencing financial hardship or holding a concession card, and legal aid can assist with advice and, in some cases, representation. Lack of money is not a barrier to applying for divorce itself, though you may separately need to address spousal maintenance if you cannot cover your living costs during the process.
How to get maximum spousal maintenance?
Australian law doesn’t use a fixed formula or cap for spousal maintenance, so there’s no set “maximum” to aim for. The court instead looks at your reasonable needs and your former partner’s capacity to pay, based on section 75(2) factors like income, age, health and care of children. The strongest applications are backed by clear, well-documented evidence of genuine financial need, not by asking for the highest possible figure.
What am I entitled to if my husband cheated?
Infidelity does not affect entitlements in Australian family law. Divorce is granted on a no-fault basis, and property settlements and spousal maintenance are decided based on contributions, needs and what is just and equitable, not on the reasons the relationship ended. Your entitlement depends on your financial and non-financial contributions during the relationship and your future needs, regardless of any affair.
Does your wife still get half if she cheated?
Not necessarily half, but not less because of the affair either. Australian courts do not reduce a party’s property settlement as a penalty for infidelity. Settlements are based on each partner’s financial and non-financial contributions and future needs, assessed on a case by case basis, which can result in anything from an even split to a significantly uneven one, entirely independent of who was unfaithful.
