Dispute Resolution
Am I required to pay spousal maintenance to my wife?

There is no presumption or automatic right for an individual to pay their spouse spousal maintenance following a separation. Spousal maintenance is also distinct from property settlement and child support.

The Federal Circuit Court and Family Court of Australia has the power pursuant to section 74 of the Family Law Act (‘the Act’) to make orders for spousal maintenance in respect to parties to a marriage (as well as individuals who were in a de facto relationship pursuant to section 90SE of the Act).


Pursuant to section 72 of the Act, the Court can make an Order for one party to a marriage to pay the other party spousal maintenance in circumstances where “the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

                    (a)  by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

                    (b)  by reason of age or physical or mental incapacity for appropriate gainful employment; or

                    (c)  for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).”


Section 75(2) lists a number of matters the Court is to take into account when determining an application for spousal maintenance. Examples of the matters the Court can take into account include but are not limited to:

        1. the age and state of health of each of the parties; and
        2. the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
        3. where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
        4. the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
        5. the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
        6. the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
        7. the need to protect a party who wishes to continue that party’s role as a parent.


In the Marriage of Mitchell (1995) 19 FamLR 44, the Full Court held that “the days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”. Where the line is to be drawn will depend upon the circumstances of individual cases.” However, it is to be noted the Court will not make an order for spousal maintenance if the other party does not have capacity to spousal maintenance.


If parties to a marriage reach an agreement amongst themselves regarding the payment of spousal maintenance, they can enter into either a Binding Financial Agreement or file an Application for Consent Orders with the Court. However, if the issue of spousal maintenance is in contention, the party seeking spousal maintenance must file an Application with the Court seeking spousal maintenance orders within 12 months from the date a Divorce Order is granted, otherwise they must seek leave to file proceedings out of time pursuant to section 44(3) of the Family Law Act.


Spousal maintenance can be paid as a lump sum payment or by way of periodic payments. Orders or an agreement for the payment of spousal maintenance can also be made on an interim basis, which is more common, as well as on a final basis.