Who Supports Whom After Separation?
SPOUSAL MAINTENANCE UNDER AUSTRALIAN FAMILY LAW
Part two of our family law series.
One partner earned the income. The other kept the family running.
When the relationship ends, the law does not leave
the homemaker empty-handed.
Keeping a family running is full-time work | Source: Pexels
Last issue we covered property settlements: how the asset pool is divided after separation. But there is a question that often gets overlooked: even after the property is divided, the money may not stretch far enough to live on. One party may have spent years caring for children and the household, with their earning capacity and career on pause, and now finds that everyday expenses are hard to meet.
For exactly this gap, Australian family law provides spousal maintenance: financial support paid after separation by the party who has capacity, to the party who cannot yet support themselves. It is a legal obligation, not an act of charity.
This article explains when it applies, how the court assesses a claim, what forms payment can take, and what changed under the new rules in June 2025.
01／What spousal maintenance is
Spousal maintenance means this: after separation, if one party cannot maintain a reasonable standard of living from their own income and resources, and the other party has the capacity to help, the court can order the party with capacity to provide financial support.
For married couples, maintenance is governed by ss 72 to 75 of the Family Law Act 1975 (Cth); for de facto partners, ss 90SE to 90SJ apply. The law recognises a common reality: after a relationship breaks down, earning capacity is rarely equal on both sides. Where one party spent years caring for children and the home at the cost of their own career, maintenance provides a necessary financial buffer.
Note the time limits as well: for married couples, a spousal maintenance application must generally be made within 12 months of the divorce order taking effect, and applying out of time usually requires the court's permission; for de facto partners, the application must generally be made within two years of the breakdown of the relationship, and applying late likewise involves seeking the court's leave.
02／The two threshold questions
Whether a court will order maintenance always comes down to two questions:
First, is the applicant genuinely unable to meet their reasonable living needs from their own income and resources? Second, does the other party have the capacity to pay, while still maintaining a reasonable life of their own?
Need and capacity: both must be present. The court will only make a maintenance order where one party genuinely needs support and the other genuinely has the means to provide it. The amount and the method of payment are then tailored to the circumstances of each case.
03／What the court weighs
In assessing an application, the court considers a range of factors: the age and health of both parties, their income, property and financial resources, their capacity for employment, the standard of living that is reasonable in the circumstances, the effect the relationship had on a party's ability to work, whether a party cares for a child under 18, and whether either party has a duty to support anyone else.
Since 10 June 2025, the Family Law Amendment Act 2024 (Cth) has added two considerations to that list: the effect of family violence on a party's circumstances, with the law making clear that family violence includes economic and financial abuse; and the need to provide appropriate housing for a child under 18. For someone who has lived under financial control, or who is leaving with children, the weight of those two additions speaks for itself.
The court's discretion is broad, but its direction is clear: support the party in need fairly, without placing an excessive burden on the party who pays.
Living costs do not wait | Source: Pexels
04／Forms of payment, and for how long
Maintenance is more flexible than many people expect. It can be paid periodically, by the week or the month; as a lump sum, often folded into the property settlement; as urgent or interim maintenance where someone needs immediate relief; or as a final maintenance order made after the parties' finances have been fully examined.
It is important to understand its character: maintenance is a transitional arrangement, not a lifetime pension. Its purpose is to help the recipient rebuild financial independence: completing training, updating skills, returning to the workforce. How long it lasts varies case by case, and the court will look at the length of the relationship, the recipient's age and health, whether there are young children, and the realistic prospect of self-sufficiency within a reasonable period.
Nor is a maintenance order set in stone. If circumstances change significantly, for example the recipient re-enters employment, their finances improve materially, or they remarry, the court can revisit the order, vary it, or bring the obligation to an end.
05／How it relates to property settlement
Spousal maintenance and the property settlement we covered last issue are not the same thing, though they are often dealt with together. The property settlement divides what the relationship built up; maintenance addresses whether the ongoing income is enough to live on. If the property division still leaves one party unable to meet reasonable living costs, the court can order maintenance on top of it.
The parties can also record their maintenance arrangements in Consent Orders or a Binding Financial Agreement (BFA), gaining certainty and finality, and closing off room for future disputes.
06／You do not have to litigate
Many maintenance disputes do not need to be finally decided by a court. The parties can attempt to reach agreement through negotiation between lawyers, mediation, or another form of dispute resolution. Once agreement is reached, applying for Consent Orders gives it legal force, without the time and uncertainty of litigation.
Before signing anything, it is worth obtaining legal advice to make sure the arrangement is fair, compliant and enforceable. How mediation works, and how to prepare before you sit down at the table, is what we will cover next issue.
Maintenance ends where independence begins | Source: Pexels
The work of running a home never came with a payslip.
The law still sees its value.
Maintenance is not charity. It turns years of contribution into the means to move forward.
Sun Lawyers · Sydney Office
If you are going through a separation and want to know whether you may be entitled to spousal maintenance, or you have received a maintenance claim and want to understand where your obligations end, contact Sun Lawyers. We work in both English and Mandarin.
Phone: 02 9267 4988 ｜ Email: enquiry@sunlaws.com
Sydney Office: Suite 703 & 704, 265 Castlereagh Street, Sydney NSW 2000
Website: sunlaws.com.au
This article is general legal information only and is not legal advice.
Please contact us for advice specific to your situation.