Spousal Maintenance in Australia: Who Can Claim It, How Much, and How Long It Lasts

Spousal maintenance is financial support that one former spouse or de facto partner may be ordered to pay another under the Family Law Act 1975 (Cth). It requires two things: the applicant cannot adequately support themselves, and the other person has the capacity to pay. It is not automatic, and strict time limits apply.

Many people arrive at our office believing spousal maintenance is a right that follows every separation. Others have been told they must pay it and assume there is a set formula. Neither is correct. The law is more flexible, and more demanding, than most people expect.

This guide explains who can apply, how the court approaches need and capacity to pay, what the different types of maintenance are, when claims run out of time, and how to settle the issue without going to court. It is general information, not legal advice, and your own circumstances will always matter more than any summary.

Key Takeaways

• Spousal maintenance is support for a former partner's own living costs. It is separate from child support and from the division of property.
• Married spouses apply under section 72 of the Family Law Act 1975 (Cth). De facto partners apply under section 90SF and must meet extra threshold requirements.
• The court asks two questions: can the applicant adequately support themselves, and can the other party afford to pay? The section 75(2) factors guide both answers.
• There is no formula. Orders can be periodic, a lump sum, or urgent (section 77) while a case is under way.
• Applications must generally be made within 12 months of a divorce order becoming final, or 2 years of a de facto separation, unless the court grants leave.
• Many couples settle maintenance through consent orders or a Binding Financial Agreement, which is usually faster and less stressful than a hearing.

Summary Table: Spousal Maintenance at a Glance

Source: Federal Register of Legislation, Family Law Act 1975 (Cth)

Topic	Key point	Who it affects
Legal basis	Family Law Act 1975 (Cth), sections 72, 74, 75(2), 77 and 90SF	Married and de facto couples
Core test	Inability to support oneself adequately, plus the other party's capacity to pay	Applicant and respondent
Calculation	No formula, a judgement based on the section 75(2) factors	Both parties
Periodic maintenance	Regular payments for a defined or open period	Longer-term need
Lump sum	A single payment, often linked to a property settlement	Parties wanting a clean break
Urgent maintenance	Short-term order under section 77 while the matter proceeds	People in immediate financial need
Time limits	Strict deadlines after divorce or de facto separation, with leave possible	Anyone considering a claim
Ending	Commonly on death, remarriage, a fixed end date or a court variation	Payers and recipients

What Is Spousal Maintenance, and How Is It Different from Child Support and Property Settlement?

Spousal maintenance is financial support paid between former partners for their own living costs. Child support is paid for the children. A property settlement divides assets and debts. These are three separate issues governed by different rules, although a court will often consider them together when deciding what is fair.

The confusion is understandable, because all three involve money after separation. The easiest way to keep them apart is to ask what the money is for.

Child support is calculated under the Child Support (Assessment) Act 1989 (Cth) and administered by Services Australia. It exists for the benefit of the children and follows a formula.

Property settlement is about dividing what the couple owns and owes, including superannuation. It is a one-off exercise, usually finalised by consent orders or a court order.

Spousal maintenance is about the ongoing financial position of one adult. It is the only one of the three with no formula, and it is the only one that depends on a demonstrated need.

They do interact. A person who receives a large share of the property may have less need for maintenance. A person who receives child support may have lower expenses to cover. Good advice looks at all three together rather than treating each in isolation.

Who Can Claim Spousal Maintenance in Australia?

Married spouses can apply under section 72 of the Family Law Act 1975 (Cth). De facto partners apply under section 90SF, but must first satisfy threshold requirements about the relationship. In both cases, the applicant must prove a genuine need for support and that the other person can afford to pay.

Married spouses (section 72)

Section 72 places a duty on a party to maintain the other, to the extent they are reasonably able, if the other cannot support themselves adequately. The Act lists reasons for that inability, including caring for a child under 18, age, physical or mental incapacity for appropriate paid work, or any other adequate reason.

You do not need to be divorced to apply. You can seek maintenance as soon as you separate.

De facto partners (section 90SF)

De facto spousal maintenance in Australia works on the same two-step test, but the court must first be satisfied the relationship qualifies. A de facto relationship means a couple who are not married and live together on a genuine domestic basis. The Act then sets threshold requirements. Broadly, one of the following must apply:

• the relationship lasted at least 2 years
• there is a child of the relationship
• one partner made substantial contributions and a failure to make an order would result in a serious injustice
• the relationship was registered under a state or territory scheme

The relationship must also have a sufficient connection to a participating jurisdiction. This is a technical point we check at the outset. If your relationship was short, or the dates of cohabitation are disputed, tell your lawyer early, because the threshold can decide the whole case.

How Does the Two-Step Test Work?

The court asks two questions in order. First, is the applicant unable to support themselves adequately? Second, does the other party have the capacity to pay? Both must be answered in the applicant's favour. If either fails, there is generally no order, however difficult the separation has been.

Step one: need

The applicant must show they cannot meet reasonable living costs from their own income, property and earning capacity. The court looks at what is genuinely needed, not what would be ideal. You will usually need to show a realistic budget and evidence of what you earn or could earn.

If you are capable of working but have chosen not to, expect that to be examined closely. If you are working part-time because you care for young children, that is treated very differently.

Step two: capacity to pay

The other party's capacity is assessed after their own reasonable expenses. A high income does not automatically mean capacity, and a modest income does not automatically rule it out. The court considers assets, income, earning capacity and existing commitments, including any child support they pay.

This step is where many claims fail. Payment must be within the payer's means without leaving them unable to support themselves.

The section 75(2) factors

Section 75(2) lists the matters the court must consider. The most relevant in practice are:

• Age and health of each party, and whether either has an incapacity for work
• Income, property and financial resources, and each person's capacity for appropriate paid employment
• Care of children under 18, and whether a party's caring role limits their ability to work
• Commitments each person needs to meet to support themselves and anyone they are responsible for
• Standard of living that is reasonable in all the circumstances
• The effect of the relationship on earning capacity, including career sacrifices made for the family
• Whether maintenance would help the applicant retrain and become self-supporting
• The outcome of any property settlement and any child support paid or received
• Whether either party is living with a new partner, and the financial effect of that

No single factor is decisive. The court weighs them together, which is why two couples with similar incomes can end up with very different outcomes.

What Does This Look Like in Practice? An Illustrative Scenario

This scenario is illustrative only. It does not describe a real client, and the outcome of any real case depends on its own evidence.

Imagine a parent who left paid work to raise children and has been out of the workforce for most of a 20-year marriage. After separation, they have outdated qualifications and need time to retrain. Their former partner has remained in a stable, well-paid role.

On these facts, the first step looks promising: the applicant's earning capacity has been affected by the family role they took on. The court would then look hard at the second step. What does the former partner earn after their own reasonable costs? How were the assets divided? Is the applicant likely to become self-supporting after retraining?

A realistic outcome might be periodic maintenance for a limited period while the applicant retrains, rather than an open-ended order. Change any of the facts, such as a smaller property share or a health condition, and the answer changes too. That is exactly why generalised online calculators cannot tell you much.

How Is Spousal Maintenance Calculated?

There is no formula. The court sets an amount it considers fair after weighing the section 75(2) factors against the applicant's proven needs and the payer's proven capacity. Orders take three main forms: periodic payments, a lump sum, or urgent maintenance under section 77 while the case is still under way.

People searching for how spousal maintenance is calculated often hope to find a percentage of income. There is none. The practical starting point is each party's income and expenses statement, tested against evidence.

Periodic maintenance

Regular payments, usually weekly, fortnightly or monthly. The order can run for a fixed period, until a specified event, or until further order. Courts often prefer a defined end where the applicant is expected to become self-supporting, for example after completing a course.

Lump-sum maintenance

A single payment, or a small number of payments. This suits parties who want a clean financial break, or where the payer's assets are substantial but their income is not. It is often negotiated alongside a property settlement so that the overall result works as a package.

Urgent maintenance (section 77)

Urgent spousal maintenance is available where a person is in immediate financial need and it is not practicable to decide the full claim straight away. Section 77 allows the court to order periodic or lump-sum payments to relieve that immediate need.

This is the remedy for the person who has been left with no access to funds at separation. It is a stop-gap, and a more complete hearing can follow. If you are in this position, speak to a lawyer promptly. Evidence of your immediate expenses and your lack of access to money is crucial.

What Are the Time Limits for Spousal Maintenance, and When Does It End?

Spousal maintenance time limits are strict. A married applicant must generally apply within 12 months of the divorce order becoming final. A de facto applicant must generally apply within 2 years of the relationship ending. After that, you need the court's leave, which is not guaranteed.

Source: Family Law Act 1975 (Cth), section 44, available at legislation.gov.au.

Relationship type	Starting point for the time limit	General limit
Married	Divorce order takes effect	12 months
De facto	End of the de facto relationship	2 years

The court can grant leave to apply out of time where hardship would otherwise result. Leave is discretionary, and you will need to explain the delay and show why you would suffer hardship without it. Do not treat leave as a safety net. Waiting makes everything harder.

When does spousal maintenance end?

Maintenance ends according to the terms of the order and the Act. In general:

• A fixed-term order ends on its end date.
• Under section 82, an order for a married person usually ends on the remarriage of the person receiving it, or on the death of either party unless the court has ordered otherwise.
• The court can vary or discharge an order if circumstances change materially, for example a change in health, employment or income.

A new relationship that falls short of marriage does not automatically end an order for a married person, and the position for de facto orders can differ. Cohabitation can, however, be relevant to need and to any variation application. If your circumstances have changed, or you are paying and believe the position has shifted, get advice before you stop or change payments. Unilateral changes can lead to enforcement action.

Can You Agree on Spousal Maintenance Without Going to Court?

Yes. Most couples can resolve maintenance by agreement, either through consent orders approved by a court or a Binding Financial Agreement. Agreement is usually quicker, cheaper and less adversarial than a contested hearing, and it gives both people more control over the result.

Consent orders are agreed terms that the court reviews and makes as orders. They are enforceable like any other court order. The court must be satisfied the terms are appropriate, which is a useful safeguard against agreements that are clearly one-sided.

Binding Financial Agreements (BFAs) are private agreements that can deal with maintenance as well as property. To be binding, they must meet strict requirements, including independent legal advice for each party. A poorly prepared BFA can be set aside, so this is not a place for a template from the internet. We have a separate guide on Binding Financial Agreements covering how prenups and separation agreements work.

Whichever route you take, think about what happens if circumstances change. Does the agreement end on remarriage or cohabitation? Is there a review point? Does it cover what happens if the payer's income drops? Vague drafting here is a common source of later disputes.

What Should You Do Next, and What Documents Should You Gather?

Start by getting a clear picture of your finances and your timeline. Note the dates of separation and any divorce application, then collect evidence of income, expenses, assets and debts. Book legal advice early, because time limits run from those dates and urgent needs cannot wait.

A practical checklist:

• Tax returns and notices of assessment for the last few years
• Recent payslips, or business financial statements if self-employed
• Bank, credit card and loan statements
• A realistic budget of your weekly or monthly living costs
• Evidence of any health condition that affects your capacity to work
• Details of your work history, qualifications and any retraining plans
• Superannuation statements and a list of major assets
• Any existing orders or agreements, including child support assessments
• The date you separated, and the date of any divorce order

If you are the person being asked to pay, gather the same documents. Your capacity to pay is judged on your real financial position, so accuracy and full disclosure matter. Hiding or understating income almost always backfires.

Separation is also a good moment to review your will and estate planning, as existing documents may no longer reflect your wishes. Our guides on updating or revoking a will after separation, and on estate planning costs and process, explain how that works.

Why We Will Tell You When a Claim Is Unlikely to Succeed

We would rather give you an honest assessment at the start than a hopeful one that unravels at hearing. Spousal maintenance claims fail often enough that candour is part of good advice. Our view on fees follows from the same principle.

Many firms offer no win no fee arrangements to attract work. We do not, and we are open about why. A practitioner can ethically charge the uplift only where there is a genuine, appreciable risk to the client, and in family law it is hard to assess that risk properly at the start or as the matter develops. It also creates a conflict. If an offer arrives and the firm is paid only on success, the firm has a financial reason to advise you to reject it. We will not put ourselves in that position. Our advice on whether to accept an offer should depend on your interests, not ours.

There is a second reason we move quickly on urgent matters. We once acted for a woman whose former husband burned down the family home, leaving her homeless with children. The insurer told her she was not covered because the policy had been cancelled for non-payment. We worked through the cancellation process, found it was defective, and she received a payout for both the building and the contents. That case was about insurance rather than maintenance, but it taught us how fast a separation can become a crisis, and how much depends on acting before the situation hardens.

Steven Clark is actively involved in supervising operations and overseeing standards of work. When you contact us, you deal with people, not a process. If you are separating, or have been asked to pay maintenance, book a confidential family law consultation with Steven M Clark. We will assess your eligibility, your deadlines and your options, and tell you straight where you stand. Time limits apply, so early advice matters. You do not have to work it all out alone.

References

• Australian Government, Family Law Act 1975 (Cth), Federal Register of Legislation
• Federal Circuit and Family Court of Australia, Family law information and forms
• Services Australia, Child support
• Australian Government, Family Relationships Online