You’ve lost your job, or you’re between contracts, and you’re relieved to think spousal maintenance is off the table since you have no income right now.
Then you remember the investment property, the shares, or the business you still own, and you start wondering if “no income” actually protects you at all.
It doesn’t, at least not automatically. Courts don’t just look at your last payslip when deciding whether you have to pay alimony with no income, they look at your overall financial resources, including assets you own outright and what you’re realistically capable of earning. This guide explains how that assessment actually works under Australian law, so you know where you genuinely stand.
This article is general information, not legal advice. A family lawyer can advise you on how the law applies to your specific circumstances.
Alimony vs Spousal Maintenance: The Australian Term
Australian law doesn’t use the word alimony, the correct term is spousal maintenance, a remedy under the Family Law Act 1975 that lets one former spouse or de facto partner seek financial support from the other after separation. The concept applies to both married couples and eligible de facto relationships, and it works similarly to alimony in other countries, but it’s assessed differently under the Federal Circuit and Family Court of Australia, and it’s this assessment, not your income alone, that determines whether you’ll actually have to pay.
Strict time limits also apply: married couples generally need to apply within 12 months of the divorce becoming final, and de facto couples within two years of separation. Missing these deadlines can mean needing the court’s special permission to apply late.
Can You Be Ordered to Pay With No Income?
Yes, potentially. Spousal maintenance is based on capacity to pay, not simply on whether you currently earn a wage.
If you own assets such as property, investments, or a business, the court can treat those as financial resources capable of generating income or being used to meet a maintenance obligation, even if you’re not currently drawing a salary. Our guide on how spousal maintenance is assessed under Australian family law covers this in more depth, but the short version is: the court looks at your whole financial picture, not just your pay cheque.
For example, someone who’s recently left paid work but owns an investment property generating rental income, or holds shares that could reasonably be sold, may still be found to have the capacity to pay, even with a bank statement showing no wage deposits for months.
What Counts as “Financial Resources” Beyond Income?
Courts consider a broad range of financial resources when assessing capacity to pay, including:
- Property and investments, even if they’re not generating regular income right now
- Business ownership, where a business valuation may be needed to understand its true income-generating potential
- Superannuation, though this is usually dealt with as part of property settlement rather than ongoing maintenance
- Earning capacity, meaning what you’re realistically capable of earning, not just what you’re currently earning, particularly if you’ve voluntarily reduced your income or work
This is precisely why “I have no income” isn’t, on its own, a complete defence to a spousal maintenance claim if you’re sitting on significant assets. Courts are generally alert to situations where a person has deliberately reduced their visible income while retaining access to wealth through other means.
What the Court Actually Considers Before Ordering Payment
Spousal maintenance isn’t automatic, even where assets exist. The court weighs both sides of the equation:
- Whether the person applying is genuinely unable to meet their own reasonable expenses
- Whether you, as the other party, have the capacity to pay after meeting your own reasonable needs
- The age, health, and earning capacity of both people
- Each person’s property and financial resources overall
If your former partner also owns significant assets, or is otherwise able to adequately support themselves, that materially weakens their case, since eligibility depends on genuine need on one side and genuine capacity on the other. It’s also worth noting spousal maintenance is entirely separate from child support, one spouse can be ordered to pay both at the same time, since they address different needs.
Does Property Settlement Change What You Owe?
Often, yes.
Spousal maintenance and property settlement are frequently considered together, and a larger share of property or assets awarded to the other party in a settlement can reduce, or remove, the ongoing need for maintenance payments. Our guide on what you may be entitled to in a separation explains how property, including jointly owned and individually owned assets, is generally assessed as a shared pool rather than kept strictly separate.
Can You Modify or Stop Payments Later?
In the US, this is called a motion to modify or a petition to terminate. In Australia, the equivalent step is applying to the court to vary or discharge an existing maintenance order, or reaching a fresh agreement between both parties.
If your financial circumstances genuinely change, for example you sell an asset, your earning capacity drops, or your former partner becomes able to support themselves, either party can apply to the court to have the final orders reviewed. This isn’t guaranteed, the court will look at whether the change is genuine and significant, not just inconvenient.
What Orders Can a Court Make?
Spousal maintenance can be structured a few different ways:
- Periodic (regular) court-ordered payments, weekly, fortnightly, or monthly
- A lump sum, sometimes drawn from an asset sale or a broader property settlement
- An agreement formalised through a consent order or a binding financial agreement, without needing a contested court hearing
Which option makes sense depends heavily on what assets are actually available and how liquid they are, since a court generally won’t order alimony payments that exceed your real financial resources.
When to Seek Legal Advice
If you own assets but have little or no current income, or you’re the one applying for spousal maintenance from a former partner in this position, this is exactly the kind of situation where legal advice matters most. These cases tend to be more complex than straightforward wage-based assessments, since they often involve valuing property, businesses, or investments before a fair figure can be discussed.
An experienced family lawyer can assess your actual financial resources, not just your income, and help you understand what a court is realistically likely to order. Our team at Collective Family Law Group can walk you through your options, whether you’re the one who may need to pay or the one who may be entitled to support.
Frequently Asked Questions
How do I divorce my wife if I have no money?
Having no money doesn’t prevent you from applying for divorce, the filing fee can be reduced or waived in cases of genuine financial hardship, and legal aid or a community legal center can assist if you can’t afford a lawyer. Property and spousal maintenance are dealt with separately from the divorce application itself.
Is there a way around paying alimony?
Not by simply having no income if you own assets, since courts look at your overall financial resources and earning capacity, not just your current pay. Genuine ways to reduce or avoid an order generally involve showing your former partner doesn’t actually meet the eligibility criteria, or reaching a fair property settlement that removes the ongoing need for maintenance.
Who cannot get alimony?
Generally, someone who can already adequately support themselves through their own income, assets, or earning capacity won’t qualify, nor will someone whose former partner genuinely lacks the capacity to pay after meeting their own reasonable expenses. Eligibility is assessed case by case, not assumed automatically.
