In this guide
Many fathers who come to us after separation have never seriously considered spousal maintenance — either as something they might owe, or something they might be entitled to claim. It tends to feel like a concept from an earlier era, or something that only affects high-income households.
In practice, spousal maintenance is very much part of current family law in Australia. It is distinct from child support and from property settlement. It can be ordered on an urgent basis, it has strict time limits, and the consequences of missing those limits can be significant. Getting proper advice early is not optional.
What spousal maintenance is
Spousal maintenance is a payment one party to a marriage makes to support the other party after separation, where the receiving party is unable to adequately support themselves. It is governed by Part VIII of the Family Law Act 1975 (Cth) — specifically sections 72 to 85A for married couples.
It is not automatic. There is no formula. It requires either a court order or a binding agreement between the parties — which means it must be actively applied for or negotiated. It is entirely separate from child support, which is calculated and administered by Services Australia under a different legislative scheme. A court can make a spousal maintenance order at the same time as, or completely separately from, property settlement orders.
Either party can apply. The law does not distinguish on the basis of gender. While maintenance is more commonly claimed by the lower-earning party, it is possible for a father to apply for maintenance if the circumstances support it.
Who is eligible
Under section 72 of the Family Law Act, a party to a marriage is entitled to maintenance by the other party only if — and to the extent that — the other party is reasonably able to pay it, and the applicant is unable to support themselves adequately because:
- they have the care and control of a child of the marriage who has not yet turned 18; or
- they are unable to support themselves through gainful employment because of age or physical or mental incapacity; or
- for any other reason it would, in all the circumstances, be proper to make a maintenance order.
The third ground — "for any other reason" — gives courts significant discretion. Courts have found it proper to make maintenance orders where, for example, one party gave up a career to support the other's professional development or to raise children, and their earning capacity has diminished as a result.
The key threshold is inability to support oneself adequately. Someone who earns an income, but substantially less than they need to maintain a reasonable standard of living in the context of the marriage, may still be eligible. The question is not simply whether the applicant has any income, but whether that income is adequate in the circumstances.
Early advice gives you options. We'll tell you plainly where you stand.
What courts consider
If the threshold test under section 72 is met, the court then assesses the amount and duration of any maintenance by reference to a list of factors in section 75(2) of the Family Law Act. These include:
- the age and state of health of each party;
- the income, property, and financial resources of each party, and the capacity of each party to earn that income;
- whether either party has the care or control of a child of the marriage;
- commitments of each party that are necessary to enable them to support themselves or any child or other person they are legally required to maintain;
- the responsibilities of either party to support any other person;
- the eligibility of either party for a pension, allowance, or benefit;
- a standard of living that is reasonable in the circumstances;
- the extent to which the payment of maintenance would increase the earning capacity of the applicant by enabling them to undertake a course of education or training;
- the duration of the marriage and the extent to which it affected the earning capacity of the applicant;
- the need to protect the position of a person who wishes to continue their role as a parent;
- any financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of a financial resource of the other party; and
- any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
The list is not a checklist — courts weigh the factors relevant to the particular case. Maintenance is not intended to equalise incomes between parties indefinitely. The usual approach is to assess what the applicant needs and what the respondent can reasonably provide, and to structure any order with a defined duration or review point rather than on an open-ended basis.
De facto relationships
Spousal maintenance is also available to former de facto partners under Part VIIIAB of the Family Law Act (for couples where the relationship ended after 1 March 2009 and the parties were in a state or territory that referred these matters to the Commonwealth, which includes NSW and the ACT). The eligibility criteria and factors are equivalent to those for married parties under sections 90SF and 90SM.
The time limit for de facto maintenance applications is two years from the end of the de facto relationship — not 12 months as for married parties. See the time limits section below for more detail.
Urgent and interim maintenance
If a party has an immediate and urgent need for financial support after separation — they cannot pay rent, buy food, or meet basic expenses — they can apply to the Federal Circuit and Family Court of Australia for urgent interim maintenance on short notice. The court can make an order quickly where there is genuine immediate need, without waiting for the full hearing of the maintenance application.
Interim maintenance orders are made on the basis of the material available at the time and are subject to change when the full proceedings are heard. They are nonetheless binding and enforceable in the same way as final orders.
If you receive a demand for urgent maintenance, or if you need urgent maintenance yourself, do not delay. The court takes immediate financial need seriously, and the matter will often be listed promptly.
Call us. These matters move quickly and so should you.
Time limits — critical
This is the part of spousal maintenance law that catches people out most often.
Under section 44(3) of the Family Law Act, an application for maintenance by a party to a marriage must be made within 12 months of the divorce order becoming absolute. If you are divorced and do not apply for maintenance within that 12-month window, you will generally need the court's permission to apply — and permission is not automatically granted.
Many people assume they can deal with maintenance "later" or raise it as part of property settlement at some future point. This is a mistake. If your divorce comes through and you let 12 months pass without an application or an agreed arrangement in place, your ability to claim maintenance may be lost.
For de facto partners, the time limit under section 44(5) is two years from the end of the de facto relationship.
It is also worth noting that maintenance is separate from property settlement. Property settlement has its own time limit — 12 months from divorce for married parties, two years from the end of the relationship for de facto parties. The two limitations run in parallel, not together.
If you are separated but not yet divorced, the clock has not yet started running on the post-divorce limitation. But that is not a reason to delay — the sooner a maintenance arrangement is in place (by agreement or by order), the more certain your position.
Your time to apply for maintenance may be running out. Get advice now.
Maintenance vs property settlement
Spousal maintenance and property settlement are two distinct parts of family law, governed by different provisions of the Family Law Act, and they serve different purposes.
Property settlement is a once-and-for-all adjustment of the parties' assets, liabilities and superannuation. Once a property settlement is finalised — by consent orders or by a court order — it is intended to be final. The assets are divided and the financial relationship between the parties is severed.
Spousal maintenance is an ongoing income payment. It is designed to address a disparity in the parties' ability to support themselves after separation — not to divide the asset pool. A maintenance order can be varied or ended if circumstances change: for example, if the recipient's income increases substantially, or if they remarry.
In practice, the two are often dealt with together in negotiations or proceedings. A property settlement that significantly improves the financial position of one party may reduce or eliminate the need for maintenance. Conversely, where the asset pool is small but income disparity is significant, maintenance may be more important than the property division.
They can also be dealt with by agreement. A binding financial agreement (BFA) under Part VIIIA of the Family Law Act can include provisions about maintenance. Consent orders filed with the court can similarly address both property and maintenance. If your circumstances allow for it, resolving both by agreement rather than court proceedings is generally faster, cheaper, and less adversarial. See our guide on consent orders and BFAs for how that process works.
Frequently asked questions
Can a maintenance order be changed after it is made?
Yes. Under section 83 of the Family Law Act, the court may discharge, suspend, revive, or vary a maintenance order if there has been a material change in circumstances. Examples include a substantial change in either party's income, the recipient beginning full-time employment, or the recipient remarrying. A maintenance order is not necessarily permanent — it can be revisited if circumstances genuinely change.
Does maintenance stop if the recipient starts living with a new partner?
Not automatically. A new de facto relationship is a changed circumstance that the court can take into account in an application to vary or discharge a maintenance order. Whether it results in the order being reduced or ended depends on the financial impact of the new relationship on the recipient's ability to support themselves.
Is there a formula for calculating spousal maintenance?
No. Unlike child support, there is no formula. The amount and duration of maintenance is assessed by the court (or agreed between the parties) based on the section 75(2) factors and the particular circumstances of the case. This makes legal advice especially important — the range of possible outcomes is wide.
What if I cannot afford the maintenance I am paying?
If your financial circumstances have changed materially since the order was made — for example, you have lost your job, your income has fallen significantly, or you have incurred substantial new expenses — you may be able to apply to have the maintenance order varied or suspended. You should not simply stop paying: failure to comply with a maintenance order can result in enforcement action.
I have been separated for years but was never formally divorced. Can maintenance still be claimed?
Yes. The 12-month post-divorce time limit applies from when the divorce order becomes absolute — not from the date of separation. If you have not yet divorced, the limitation period has not started. However, the longer maintenance arrangements remain unresolved, the more complicated they can become. Early advice is preferable to waiting.
This guide is general information only and does not constitute legal advice. Spousal maintenance law is complex and highly fact-specific. For advice about your situation, speak with a qualified family lawyer.