Pursuant to s 74 of the Family Law Act 1975, the court has the power to order one spouse to provide financial support to the other spouse if:

• the applicant is not able to meet his or her own reasonable needs; and

• the respondent has the capacity to pay or to contribute to those needs.

See Who is entitled?

When determining an application for spousal maintenance, the court will have regard to all the issues set out in s 75(2) of the Act. These considerations include:

• the age and state of health of the parties;

• the income, property and financial resources of each of the parties;

• whether either party has the care of any child under 18 years of age;

• the commitments of each party; and

• the cost of a "reasonable" standard of living (which is subjective and relative to the standard of living enjoyed by the parties during their relationship).

The court is specifically required to disregard an entitlement either party may have to a pension or benefit paid by the Commonwealth.

There are really three issues in a spousal maintenance application:

• What are the reasonable needs of the applicant? Note these “needs” can be generously interpreted and are considered in the context of the standard of living enjoyed during the marriage. See Need for maintenance.

• What is the capacity of the applicant to meet his/her own needs? This is a test of earning capacity, not earnings.

• What is the capacity of the respondent to contribute to the needs of the applicant once their own reasonable expenses are met?

Spousal maintenance orders are not generally made for the long term, that is, they are made on an interim basis or "until further order". Generally, spousal maintenance orders are made to allow the party in need a period of time to enable that party to re-house themselves, complete a course of study or re-enter the work-force with a view to becoming self-sufficient.

If a long term spouse maintenance application is sought, the court will have regard to the entitlement of that party to property settlement. Often, the result of a final determination of property issues will obviate the need for spousal maintenance. If a final order for spousal maintenance is made, it will, more often than not, be made for a specific period of time (ie two years) (s 75(2)(f) or until the occurrence of a specific event, ie youngest child turning 6 or attending full-time school or the party completing a course of study, commencing paid employment or cohabitating with someone in a marriage like relationship) and not forever.

An order for spousal maintenance also ceases:

• upon the death of one of the parties; or

• upon the re-marriage of the person in receipt of spousal maintenance;

An order for spousal maintenance can take a variety of forms including:

• periodic payment such as monthly payments;

• a lump sum payment; or

• a transfer of property.

Spousal maintenance is not something that is gender specific (ie it is not something which husband must pay to their wives and it can also be paid in same-sex and de facto relationships. It can be paid by either party to the other when the elements required to establish the legal obligation for spousal maintenance are met.

Applications for spousal maintenance must be lodged within 12 months of a divorce being finalised. Only in special circumstances will the court grant leave out of this time period to apply for spousal maintenance.

The principles in relation to spousal maintenance also apply to de facto couples who otherwise come within the jurisdiction of the Act. Note that in Western Australia applications for de facto spousal maintenance are made to the Family Court of Western Australia under the Family Court Act 1997 (WA).

An applicant relying on a de facto relationship must make an application within two years of the relationship breakdown in which to apply for de facto spousal maintenance.