If a person can’t meet their living expenses from their own income or resources, and their ex-partner is able to support them,  a person may apply to the Court for spousal maintenance. Spousal maintenance is separate from property division, turning on one party’s need and the other’s capacity to pay.

The claim proceeds in two stages. First, the threshold in section 72(1): the applicant must be unable to support herself or himself adequately, whether by reason of the care of a child under 18, age or incapacity, or any other adequate reason. Also, their spouse must be reasonably able to support them.  If a person makes a claim, it is not a vague suggestion, they must prove by reference to documents such as payslips, bank statements or mortgage statements that they are in a genuine deficit. It must then be proved by reference to the same kinds of documents that the spouse can afford to maintain them.

Second, if the threshold is met the Court will then look at the circumstances of the matter including the income, property and financial resources, earning capacity, care of children, a reasonable standard of living, duration of the relationship, the effect of family violence when deciding what order can be made.

Ultimately, the Court can not draw blood from a stone, and so if there is no capacity to pay from the other spouse, no order is likely to be made.

In practice, whether one spouse will be required to meet the other’s living expenses depends on the parties’ respective incomes, earning capacities and reasonable needs. If one party has a materially lower income or is constrained by the care of children, an interim maintenance claim may be available if the other party has capacity to pay; if the first person can support themselves adequately, there will be no maintenance order.

Will my spouse pay my ongoing living expenses forever?

The court will not order one party to pay the other’s living expenses as a free standing, open ended obligation. The remedy is spousal maintenance.

Property settlement (section 79) is a once and for all alteration of proprietary interests, not recurring support. Living costs are relevant either as the measure of need in a maintenance claim, or to the current and future circumstances adjustment under section 79(5). Recurring payments for living costs come only through the maintenance jurisdiction. Any ongoing payments as a final order to a person will be reviewed through the lens of section 81 of the Family Law Act which holds that the duty of the Court in property proceedings is to end financial relations between parties.