Spousal Maintenance in Australia: Who Qualifies?

Spousal maintenance is financial support paid by one party to a marriage, or by one former de facto partner to the other after the relationship ends, to help meet reasonable living expenses where the legal threshold is met. Under the Family Law Act 1975 (Cth), a person may be eligible for spousal maintenance if they cannot adequately support themselves — for example, because they care for young children, or because of their age or health — and their former partner is reasonably able to help. Strict time limits apply: generally 12 months after a divorce order takes effect for married couples, or 2 years after separation for de facto couples. Spousal maintenance is separate from child support and property settlement. This article explains who can apply, how amounts are decided, and what to prepare before contacting Caspian Legal.

What Is Spousal Maintenance?

Spousal maintenance is an order requiring one party to a marriage, or one former de facto partner after the relationship ends, to financially support the other where the statutory test is met. It can be paid periodically (for example, weekly or monthly), as a lump sum, or by way of transferring property. It is different from child support, which is paid for the benefit of a child, and different from a property settlement, which divides the couple’s assets and liabilities.

For married couples, the right to maintenance is set out in section 72 of the Family Law Act 1975 (Cth). For de facto couples, the equivalent provision is section 90SE. Both provisions apply a similar threshold test.

Key Terms Explained

The table below explains the terms used in this article in plain English.

Term	Plain-English meaning
Spousal maintenance	Ongoing or lump-sum financial support from one (former) partner to the other, based on need and capacity to pay.
Threshold test	The requirement, under s72(1) or s90SE(1), that the applicant cannot adequately support themselves and the other party is reasonably able to help.
De facto relationship	A relationship between two people who are not married but live together on a genuine domestic basis, as defined in s4AA Family Law Act 1975 (Cth).
Urgent maintenance	An interim order for immediate financial relief while a full maintenance application is being decided: s77 (marriage) and s90SG (de facto).
Property settlement	A separate process dividing the couple’s property and financial resources, distinct from maintenance.
Child support	Financial support for a child, generally assessed administratively under the Child Support (Assessment) Act 1989 (Cth), separate from spousal maintenance.
Binding Financial Agreement (BFA)	A private agreement between the parties that can deal with maintenance, made under Part VIII or Part VIIIAB of the Family Law Act 1975 (Cth).

Who Can Apply: The Threshold Test

Before the court considers how much maintenance should be paid, the applicant must satisfy a threshold test. Under section 72(1) (marriage) and section 90SE(1) (de facto), a party is only entitled to maintenance if they are unable to support themselves adequately, and this must be because of one of the following:

• They have care of a child of the relationship who is under 18; or
• Their age or physical or mental incapacity prevents appropriate gainful employment; or
• Any other adequate reason, having regard to the factors in s75(2) (marriage) or s90SF(3) (de facto).

The other party must also be reasonably able to pay, having regard to their own needs and financial circumstances.

How the Court Decides the Amount

If the threshold test is met, the court considers a broad list of factors in deciding whether to make an order and, if so, how much. The key factors under section 75(2) (or the equivalent section 90SF(3) for de facto couples) include the following.

Factor	What the court looks at
Age and health	The age and state of health of each party, and how this affects their ability to work.
Income, property and financial resources	What each party earns, owns and can reasonably access, and their capacity for gainful employment.
Care of children	Whether either party cares for a child of the relationship under 18, including housing needs for that child.
Family violence	The effect of any family violence one party has subjected or exposed the other party to, including on the other factors listed here.
Standard of living	What is reasonable in the circumstances, having regard to the standard of living during the relationship.
Duration of the relationship	How the length of the relationship affected the applicant’s earning capacity — for example, time out of the workforce.
Existing agreements	The terms of any binding financial agreement between the parties.
Child support paid	Any child support a party has provided, is providing, or may be liable to provide.

The court disregards any entitlement the applicant may have to an income-tested pension, allowance or benefit when assessing their need. For married couples this is under section 75(3), and for de facto couples the equivalent is section 90SF(4), Family Law Act 1975 (Cth). This means Centrelink eligibility does not, by itself, defeat a maintenance claim.

Step-by-Step: Applying for Spousal Maintenance

1. Confirm eligibility — check whether the relationship was a marriage or a de facto relationship, and whether the applicable time limit has expired.
2. Consider whether urgent maintenance is needed. If immediate financial hardship exists, an application for urgent maintenance can be made under s77 or s90SG while the full application is prepared.
3. Gather financial documents (see checklist below) to support the threshold test and the s75(2)/s90SF(3) factors.
4. Attempt to negotiate or use family dispute resolution where appropriate, before filing with the court.
5. File an application with the Federal Circuit and Family Court of Australia if agreement cannot be reached, including a financial statement.
6. The court considers the threshold test, then the relevant factors, and decides whether to make a periodic, lump sum, or property-based maintenance order.
7. A maintenance order can later be varied under s83 (marriage) or s90SI (de facto) if circumstances change materially, and generally ceases on the death of either party or the recipient’s remarriage, subject to the court’s discretion: s82 and s90SJ.

Married vs De Facto: Key Differences

Issue	Married couples	De facto couples
Governing sections	ss 72–75, 77, 82, 83	ss 90SB, 90SE, 90SF, 90SG, 90SI, 90SJ
Time limit to apply	Generally 12 months after the divorce order takes effect: s44(3)	Generally 2 years after the relationship ends: s44(5)
Extra threshold requirement	None beyond s72(1)	Must also satisfy s90SB — for example, a relationship of at least 2 years, a child of the relationship, or substantial contributions with a risk of serious injustice
Out-of-time applications	Possible with leave of the court, on limited grounds: s44(4)	Possible with leave of the court, on limited grounds: s44(6)

Document Checklist

Preparing these documents in advance helps your solicitor assess whether you meet the threshold test and estimate a realistic outcome.

• Recent payslips, tax returns and Notices of Assessment
• Bank and superannuation statements
• A list of assets, debts and financial resources for both parties, where known
• Evidence of ongoing expenses (rent, mortgage, utilities, childcare, medical costs)
• Medical or specialist reports, if health is relevant to your capacity to work
• Evidence of the relationship’s length and any relevant financial agreement
• Details of any child support already being paid or received

What Not to Do

• Do not assume you automatically miss out because you receive, or are entitled to receive, an income-tested Centrelink pension, allowance or benefit — for married couples this is disregarded under s75(3), and for de facto couples under s90SF(4), when assessing need.
• Do not wait until the time limit is close to expiring — 12 months (marriage) or 2 years (de facto) can pass quickly, and applying late requires the court’s leave.
• Do not rely on an informal verbal agreement for ongoing support without documenting it or having it formalised.
• Do not hide or fail to disclose income, assets or financial resources — the court expects full and frank financial disclosure from both parties.
• Do not assume spousal maintenance and child support are the same thing, or that receiving one rules out the other.

Local Relevance: Hornsby and the Upper North Shore

Caspian Legal assists clients across Hornsby and the Upper North Shore — including Waitara, Asquith, Wahroonga, Normanhurst, Thornleigh, Pennant Hills, Berowra and Mount Colah — with spousal maintenance, property settlement and other family law matters. Family law applications for Sydney metropolitan clients are generally filed with the Federal Circuit and Family Court of Australia, with the Parramatta registry commonly used by clients in the wider Sydney area.

What Happens at a First Consultation

A first consultation with Caspian Legal generally involves:

• Reviewing your financial position and that of your former partner, to the extent known
• Explaining whether the threshold test is likely to be met in your circumstances
• Identifying relevant time limits and whether urgent maintenance may be appropriate
• Discussing options, including negotiation, family dispute resolution, or filing an application
• Setting out next steps and the likely costs involved

Frequently Asked Questions

Do I have to be divorced to apply for spousal maintenance?

No. You can apply for spousal maintenance after separation, even before a divorce is finalised, and in limited circumstances even while still married and living together. Divorce and financial proceedings are separate legal processes.

Is spousal maintenance the same as child support?

No. Spousal maintenance supports a former partner, while child support is paid for the benefit of a child and is generally assessed separately under the Child Support (Assessment) Act 1989 (Cth). A party can be both paying child support and involved in a spousal maintenance claim at the same time.

What is the time limit to apply?

For married couples, an application generally must be filed within 12 months of the divorce order taking effect: s44(3) Family Law Act 1975 (Cth). For de facto couples, the limit is generally 2 years after the relationship ends: s44(5). Applications outside these periods require the court’s leave, which is only granted in limited circumstances.

Will my new relationship affect my maintenance?

If you remarry, spousal maintenance generally ceases unless the court orders otherwise: s82 (marriage) and s90SJ (de facto). If you begin a new de facto relationship without marrying, the court can take into account the financial relationship with your new partner when assessing whether you can support yourself adequately.

Can I get urgent financial support while my application is being decided?

Yes, in cases of genuine financial hardship. Sections 77 and 90SG allow the court to make an order for urgent maintenance pending the outcome of the full application, without requiring the same level of detail as a final hearing.

Can a maintenance order be changed later?

Yes. A maintenance order can be varied under s83 (marriage) or s90SI (de facto) if there has been a material change in circumstances, such as a significant change in either party’s income, health or care arrangements.

Does my former partner’s ability to pay matter?

Yes. Maintenance is only payable to the extent the other party is reasonably able to pay, taking into account their own reasonable needs and financial circumstances, alongside the factors in s75(2) or s90SF(3).

Risk of Delay

The time limits in section 44 are strict, and applications made outside these periods require the court’s leave, which is only granted in limited circumstances. If your relationship has ended and you may need financial support, it is worth seeking advice promptly rather than waiting until close to the 12-month or 2-year deadline.

Next Step

f you have separated and want to understand whether you may be entitled to spousal maintenance, or you have received a claim from a former partner, you can speak with a family lawyer about spousal maintenance to discuss your options.

Caspian Legal Pty Ltd
22–28 Edgeworth David Avenue, Hornsby NSW 2077
Phone: 02 7264 3200
Website: caspianlegal.com.au
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Sources

1. Family Law Act 1975 (Cth), s 4AA (de facto relationship) — legislation.gov.au
2. Family Law Act 1975 (Cth), ss 44, 72, 75, 77, 82, 83 (married couples) — legislation.gov.au
3. Family Law Act 1975 (Cth), ss 90SB, 90SE, 90SF, 90SF(4), 90SG, 90SI, 90SJ (de facto couples) — legislation.gov.au
4. Federal Circuit and Family Court of Australia — ‘Financial or property: Spousal maintenance’ — fcfcoa.gov.au
5. Child Support (Assessment) Act 1989 (Cth) — legislation.gov.au