It is a common belief that child support obligations also incorporate spousal maintenance, however, in reality the two are separate obligations.

Child Support

In absence of agreement, a party’s child support obligations may be assessed by the Child Support Agency, with the assessment based on:

  • the parties’ respective incomes;
  • the number of nights the child or children spend with each party; and
  • The age of the child or children.

These payments are intended to provide financial support for costs associated with raising children, and include food, school uniforms and other relevant expenses. Conversely, spousal maintenance is a payment made by one party to the other to support the party who is unable to support themselves.

Spousal Maintenance

The Family Law Act 1975 (Cth) provides that a party to a marriage or defacto relationship is liable to maintain the other party to the extent that the first party is reasonably able to do so, and only in circumstances whereby the second party is unable to support themselves. A party may be found to be unable to support themselves due to having care of a child or children under 18 years of age, due to age or physical or mental incapacity affecting the ability to gain appropriate employment or for any other adequate reason.

In McCrossen & McCrossen [2006] FamCA 868, the Full Court said that the question as to a person’s ability to adequately support themselves is:

“…not to be determined upon a ‘subsistence level’ but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances.”

If parties reach agreement with respect to Spousal Maintenance, this can be formalised by way of a Family Court of Australia Consent Order or Binding Financial Agreement. If parties are unable reach an agreement, either party is at liberty to file an Application for Spousal Maintenance in the Federal Circuit Court of Australia. Importantly, there are time limits within which to file an Application for Spousal Maintenance. The parties have 12 months from the date of their divorce, or in a defacto relationship 24 months from the date of separation within which to file the application.

Contact the family lawyers at Culshaw Miller in Adelaide today for more information.