Maintenance refers to spouse, de facto or child maintenance paid by one party to the other after a couple separate; while child support refers to the legal responsibility for parents to financially support their children.
We can help you make an application for a maintenance order, assist with a child support claim, or an application to review a decision made about child support. These matters can be complex and are often the subject of many family law disputes.
What is spousal maintenance?
In some circumstances, the Federal Circuit and Family Court of Australia can make maintenance orders for a former spouse or de facto partner to provide financially for their ex-partner.
A maintenance order may be granted in cases where the person receiving the maintenance is unable to adequately support themselves. Typical scenarios may arise where one party was the primary breadwinner during the relationship, while the other gave up career opportunities to contribute in non-financial ways. The result is a disparity in the capacity of the ‘homemaker’ to support themselves financially.
While preference is given to the ‘clean break’ principle in family law property settlements (meaning arrangements for the division of property should provide finality between the parties), spousal maintenance is sometimes justified and therefore relevant when determining a property settlement.
Maintenance may be ordered on an ongoing basis, or as an interim arrangement, pending the final determination of a property settlement.
Applying for spousal/de facto maintenance
If you are not able to support yourself after separating from your spouse, and your ex-partner is in a financial position to do so, you may be eligible to receive spousal maintenance. The Court can also make a de facto maintenance order provided the relationship meets certain jurisdictional requirements.
An application for maintenance must be carefully prepared with evidence to show that you are unable to adequately support yourself and that your former spouse/partner is able to do so. Supporting evidence may include financial statements and, where relevant, medical reports setting out any health concerns and how these impact your earning capacity.
The Court will consider a range of factors to assess your circumstances and those of your ex-partner. These include:
- Each party’s assets, income, financial resources, and liabilities
- The age and health of the parties
- Your respective abilities to earn an income and the impact the relationship has had on your income-earning abilities
- A suitable standard of living in the circumstances
- Whether there are children and who they live with/spend time with
Parents have a legal obligation to financially support their children to the extent that they can do so. This responsibility applies regardless of whether a parent has regular contact with their children. Even parents who have no contact with their children may be required to pay child support. Same-sex parents have the same financial obligations to their children. A same-sex couple will usually be considered a child’s parents if they have adopted the child, the child was born through an artificial conception procedure while the parents were in a relationship, or the child was born as a result of a surrogacy arrangement and a court had made an order declaring the couple are the parents.
Parents can make a private agreement about how much child support will be paid, if any. Alternatively, they can apply to Services Australia (Child Support) for an administrative assessment.
Child support payments are calculated using a complex formula based on factors such as the number of children, their ages, the income of each of the parents, and how much time each parent spends caring for the children. Each case is unique, so there is no one-size-fits-all solution. An estimate of child support payments can be obtained through the Services Australia online calculator.
Child support payments typically end when a child turns 18. However, if the child is still in high school, the parent receiving the support can apply to extend payments until the end of the school year.
Applications for the reassessment of child support
A parent may apply for a reassessment of child support payments if, for example, the applicant believes the assessment did not fully consider the special needs of a child or a parent’s circumstances. Similarly, parents who pay child support may have changed circumstances that arise after an assessment has been made making it financially difficult to continue meeting the payments.
If you believe an assessment has been made in error or has not considered all the relevant criteria, or your circumstances have changed resulting in financial hardship, we can help you through the process of applying for a reassessment.