Preparing a spousal maintenance claim
Spousal maintenance is assessed on need and capacity. Both the applicant's reasonable needs and the respondent's capacity to pay must be established before the court will make an order.
This is an 8-step workflow for preparing a spousal (or de facto partner) maintenance claim under Parts VIII and VIIIAB of the Family Law Act 1975 (Cth).
Before you start
- Relationship status confirmed (marriage or de facto)
- Applicant financial position documented
- Respondent income and expenses information is available
- Time limits under s 44 confirmed
The workflow
Confirm eligibility and time limits
Confirm the applicant is eligible under s 72 (marriage) or s 90SF (de facto) and that the application is within the time limit under s 44 (12 months post-divorce; 2 years post-separation for de facto).
Prepare the applicant's budget
Prepare a detailed weekly and annual budget showing the applicant's reasonable expenses. Distinguish between current actual spending and reasonable needs.
Establish need
Establish the applicant cannot meet their reasonable needs from their own income, property, or ability to work (taking into account age, health, and care of children).
Establish respondent capacity
Assess the respondent's income, expenses, and assets to demonstrate capacity to pay. Include business income, distributions, and non-taxable benefits.
Consider urgent maintenance
If the applicant has immediate need, consider an urgent maintenance application under s 77 or s 90SG. These applications can be heard ex parte in urgent cases.
Draft the Financial Statement and affidavit
Draft the Financial Statement (Form 13), supporting affidavit setting out need and capacity, and the application specifying the quantum and duration sought.
File and serve the application
File the application through the Commonwealth Courts Portal and serve it personally on the respondent. Comply with pre-action disclosure obligations.
Attend interim and final hearing
Attend the interim hearing for urgent relief and prepare for the final hearing with updated financial evidence if the matter is not resolved.
What you will have at the end
An interim, periodic, lump sum or urgent spousal maintenance order that meets the applicant's reasonable needs to the extent of the respondent's capacity to pay.
Common issues
- Failing to evidence reasonable needs with specificity
- Overlooking the 2-year de facto time limit
- Not addressing earning capacity where the applicant can work
- Conflating spousal maintenance with property settlement
- Missing disclosure obligations on the respondent's side
Run this workflow on a real matter
Quillio drafts the supporting affidavit and submissions by mapping the budget against the s 72 and s 75(2) factors. See /practice-areas/family-lawyers or start a free trial.
This workflow is a general guide. Adapt it for the specific circumstances of the matter, especially the interaction with property settlement claims.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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