How the Courts determine spousal maintenance for separated de facto couples
Spousal maintenance for separated de facto couples is determined under the Property (Relationships) Act 1984 and not the Family Law Act. The Court can make an Order for spousal maintenance of a de facto partner where:
- the applicant is unable to support him or herself adequately because they have to care for a child of the relationship or of the other party who is under twelve years (or sixteen years if handicapped). The Order for spousal maintenance will cease on the child reaching the age of twelve years (or sixteen years if handicapped); or
- the applicant is unable to support himself or herself adequately because their earning capacity has been adversely affected by the circumstances of the relationship and the maintenance Order would increase their earning capacity by enabling them to undertake a course or program of training. The period of the Order cannot exceed three years after the day on which the Order is made or four years after the parties have ceased to live together (whichever is the earlier).
Where the spousal maintenance Order has been made for both childcare and for retraining then the longer of the two sets of time limits will apply. For example, if the child is seven years of age, the spousal maintenance continues beyond the three or four year limit (for retraining) until the child reaches twelve years of age (or sixteen if the child is handicapped).
An Application for spousal maintenance must be made within two years of separation. An Application cannot be made if the applicant is in another de facto relationship or marriage. An Order for spousal maintenance will cease on the death or marriage of either party.
What the Court considers in determining spousal maintenance
In considering an Application for spousal maintenance, the Court considers:-
- the income, property and financial resources of the parties;
- the financial need and obligation of the parties;
- the responsibilities of each party to support other persons;
- any property settlement between the parties;
- payments by one of the parties to the other for maintenance of a child.
How the Courts determine child support for children of separated de facto couples
Financial support for a child of a de facto relationship is determined by the same child support legislation as applies to children of married parents. Orders in respect of parenting arrangements for children are determined by the Family Law Act. Refer to 'Child Support' and 'Determining the parenting arranges of children' Information Sheets.
