Spousal maintenance explained

What spousal maintenance is

Spousal maintenance is a financial payment from one former partner to the other after separation. It's designed to help the recipient meet their reasonable living expenses during a period where they can't adequately support themselves from their own income, assets, or earning capacity.

It is separate from child support. Child support is for the costs of raising children; spousal maintenance is for the receiving party's personal living expenses.

It is separate from the property settlement. The property settlement divides the asset pool. Spousal maintenance is an ongoing or lump-sum payment.

Either party can claim spousal maintenance. The test looks at need and capacity to pay — not gender, not who initiated the separation, not who has primary care of the children (though caregiving can be relevant to the threshold test).

When the right to claim arises

The right to claim spousal maintenance arises on separation. There's no waiting period — a party can apply from day one.

The right is time-limited:

• Married couples — the application must be made within 12 months of a divorce order taking effect.
• De facto couples — within 2 years of the date of separation.

After these windows, the right is extinguished. The court can grant an extension in exceptional circumstances, but extensions are not granted as a matter of course.

The two-step test

To succeed on a spousal maintenance claim, the applicant must clear two distinct hurdles.

Step 1 — the threshold

The applicant must show an adequate reason why they cannot support themselves. The court recognises three categories:

1. Care of a child of the relationship under 18 — the applicant has the children in their care, which limits their ability to work.
2. Physical or mental incapacity — a condition that limits the applicant's ability to earn.
3. Some other adequate reason — for example, recently relocating interstate or overseas to start over, or other circumstances the court accepts.

If none of these apply, the claim fails at this stage. A party who's perfectly capable of working and has no caregiving responsibilities cannot claim spousal maintenance just because their former partner earns more.

Step 2 — the means test (twofold)

If the threshold is met, the court applies a two-part means test.

1. The paying party's capacity. Their income minus their reasonable expenses. If there's a surplus, they have capacity to pay. If they're already at or below their own reasonable needs, they don't.
2. The receiving party's need. Their income (and any other available resources) minus their reasonable expenses. If there's a genuine gap they cannot reasonably close themselves, they have need.

Both elements must be satisfied. If either party doesn't have a surplus, or the applicant doesn't have a genuine shortfall, the claim fails.

Severity of hardship

The test isn't whether the applicant is destitute — it's whether there's a genuine gap between their reasonable needs and their ability to meet them from their own resources. The gap can arise from having no income, caring for young children, long-term absence from the workforce, or disability. The assessment is practical: what do reasonable living expenses cost, and what can the party earn (or realistically earn) themselves?

How spousal maintenance is paid

Two forms.

Periodic payments

The most common form. Weekly, fortnightly or monthly payments from the paying party to the receiving party. Used where the applicant has ongoing need (e.g. they're caring for young children) and the paying party has ongoing capacity.

Lump sum

A one-time payment that capitalises future maintenance into a single amount. Used where:

• there are sufficient liquid assets available to make a lump-sum workable, and
• it's more practical to settle the maintenance question once rather than maintain an ongoing payment relationship

A lump sum is often preferred where the parties want a clean break and there's no realistic ongoing relationship to manage.

How long does it last?

Spousal maintenance is typically short-term — generally 6 to 24 months after separation. It's intended to help the recipient get back on their feet, not to provide indefinite support.

There's no strict legislative time limit, so in rare circumstances it can be ordered for longer. Extended or lifetime spousal maintenance is extremely uncommon. It might apply where a party has a permanent inability to support themselves due to age or health, but even then, the property settlement typically handles the bulk of the financial outcome and spousal maintenance is a top-up.

Interim spousal maintenance

If a party applies for spousal maintenance and can demonstrate urgent financial need, the court can make interim maintenance orders while the substantive matter is being resolved. These are designed to prevent financial hardship in the gap between separation and final settlement.

Interim orders are weekly or monthly amounts that hold the receiving party over until the final picture is settled. They're not common, but they exist for situations where one party is suddenly without income and waiting six months for a final order isn't survivable.

How spousal maintenance is usually resolved in practice

Most spousal maintenance arrangements are resolved without contested court proceedings. The common pathways:

1. Informally — the higher-earning party voluntarily makes payments during a transition period. Risky — see below.
2. By agreement, formalised in consent orders — consent orders can address current maintenance arrangements, but cannot extinguish future claims.
3. By agreement, formalised in a BFA — a BFA can include a set-off clause that locks out all future spousal maintenance claims (subject to a statutory carve-out — see below).
4. By court order — contested proceedings. Uncommon and expensive.

Litigation purely for spousal maintenance is rare. Most disputes either resolve as part of the property settlement, or are agreed informally between the parties.

Excluding spousal maintenance — the BFA set-off

A properly drafted BFA can include a clause where each party agrees to waive their right to claim spousal maintenance from the other, both now and in the future. This is sometimes called a "set-off" or "spousal maintenance waiver".

This is one of the strongest reasons to choose a BFA over consent orders. Consent orders cannot lock out future maintenance claims. A BFA can.

The forms a set-off clause can take

• Total set-off — "Neither party can apply for spousal maintenance from the other in the event of separation."
• Nominal set-off ($100) — "If a claim is made, the maximum entitlement is $100 in total." Functionally equivalent to a waiver, with stronger procedural form.

Both formulations achieve the same result: the door is closed on future spousal maintenance.

Why it matters

Without a set-off, the lower-earning party always retains the technical right to apply for spousal maintenance within the applicable time window. This is a live risk in situations where:

• there's a significant income disparity between the parties
• one party gives up career progression for caregiving and later struggles to re-enter the workforce
• a serious health event leaves one party unable to work
• the relationship is long and the lower-earning party's earning capacity is materially affected by it

If you're the higher earner, a BFA with a set-off gives you certainty. If you're the lower earner, you're giving up that future claim — your lawyer will walk you through the implications carefully before you sign.

The government-benefits exception

There's one statutory exception to the spousal maintenance set-off that cannot be contracted around.

If, at the time the BFA takes effect (the signing date), one party can only support themselves with a government-tested pension, benefit or allowance, the set-off may not protect the other party from a maintenance claim.

"Government-tested" means a means-tested welfare payment — Centrelink income support payments like JobSeeker, Disability Support Pension, Parenting Payment, equivalent. It does not include:

• general government grants (e.g. COVID business support paid to a business)
• aged pension to a retired party with significant other resources (depends on the test)
• payments to the party who isn't the BFA-signer's spouse

What the exception means in practice

If a party is unemployed and receiving Centrelink at the time the BFA is signed, the spousal maintenance set-off in the BFA will not protect the other party. The unemployed party retains the right to apply for spousal maintenance despite the set-off clause.

Your lawyer can discuss this with you at your consultation. If one party is on Centrelink at the moment of signing, the BFA timing or the set-off clause may need to be adjusted, or the agreement may carry that risk.

What if the exception is left out?

If the BFA simply doesn't include a set-off clause — accidentally or because the parties chose not to — either party retains their statutory right to apply for spousal maintenance within the time limit. If circumstances change (one party loses income, becomes a primary carer of a sick child, has a serious health event), the right is exercisable.

Consent orders cannot exclude spousal maintenance

This is one of the key limitations of consent orders for property matters.

Consent orders address the division of property and current liabilities. They don't have the power to extinguish a party's future right to claim spousal maintenance.

If you've finalised your property split via consent orders, your former partner retains the right to apply for spousal maintenance within the applicable time window (12 months post-divorce for married couples; 2 years post-separation for de facto).

If excluding that future claim matters, a BFA — not consent orders — is the right instrument.

This is one of the most common reasons separated couples choose a BFA over consent orders despite the higher cost. Where there's a significant income disparity, the BFA's ability to close out future maintenance claims is sometimes worth the additional fee.

Voluntary post-separation payments — the trap

Here's the trap that catches a lot of well-intentioned higher-earning parties.

After separation, the higher-earning party often continues to voluntarily pay things — the mortgage on the family home where their former partner is still living, the kids' school fees, the household bills. This feels like the right thing to do. In a sense, it is.

But voluntary post-separation payments can be used as evidence in a later spousal maintenance claim. The argument runs:

• "He's been paying my mortgage for nine months. I've been relying on those payments."
• "A pattern of financial dependency has been established."
• "If he stops now, I face genuine hardship — and he's already demonstrated he can pay."

The court can take voluntary payments into account when assessing:

• whether dependency has been established (relevant to the threshold)
• whether the paying party has capacity (since they've already demonstrated it)
• whether the receiving party has been deprived if the payments stop

This doesn't mean you should stop paying everything the day after separation — that creates its own problems. But:

• Don't let voluntary payments run open-endedly. Formalise the separation terms as quickly as possible — through consent orders or a BFA.
• Talk to a lawyer before changing voluntary arrangements. Stopping payments abruptly can also create a spousal maintenance claim if it causes immediate hardship.
• Document voluntary payments as temporary and contingent. If you're going to keep paying for a transition period, do it under a written acknowledgment that the payments are voluntary, do not create ongoing obligations, and are time-limited.

The cleanest path is to finalise the formal settlement quickly. While it's open, every payment carries some implicit risk.

Specific scenarios

"I'm thinking of stopping the voluntary payments. What's the risk?"

Two risks pulling in different directions.

• Stopping abruptly can create immediate financial hardship for your former partner, which may motivate them to file an urgent spousal maintenance application. The court can make interim orders.
• Continuing indefinitely strengthens any later argument that financial dependency has been established and you have capacity to keep paying.

The right answer is usually neither — it's to formalise the settlement quickly, which removes both risks. Talk to us before changing any voluntary arrangement.

"My former partner is going to claim spousal maintenance. What can I do?"

If a claim is being made or threatened, get advice immediately. The defensive position turns on the two-step test:

• Does the applicant clear the threshold? Are they genuinely unable to support themselves for one of the recognised reasons?
• Do they have actual need? Are their reasonable expenses really beyond their own resources?
• Do you have capacity? After your own reasonable expenses, what's left?

If the application is weak on any of those tests, it can be defended. If it's strong, the more constructive approach is often a negotiated lump sum that closes the issue out, rather than periodic payments that drag on.

"My former partner has more money than me. Can I claim spousal maintenance?"

Just being the lower earner isn't enough. You need to clear the threshold — care of children under 18, physical or mental incapacity, or another adequate reason — and demonstrate genuine need.

If you have a healthy income and no caregiving responsibilities, even a much higher-earning former partner doesn't owe you maintenance. Property settlement is the mechanism for adjusting the overall financial outcome; spousal maintenance is a narrower tool with a higher bar.

"We have similar incomes. Will the set-off in our BFA work?"

If neither party is on government benefits and both are earning income comparable to your skills and experience, the set-off provides strong protection. Neither of you is likely to clear the threshold for a maintenance claim anyway, but the set-off makes it explicit.

"Will a larger initial property contribution from one side reduce spousal maintenance exposure?"

Not directly. Initial contributions affect the property settlement — they affect the split of assets. They don't directly reduce spousal maintenance exposure, which is assessed separately on need and capacity. A party who contributed significantly more assets to the relationship may still be liable for spousal maintenance if the other party has genuine need and the paying party has capacity.

Common questions

Is spousal maintenance taxable?

Periodic spousal maintenance payments are generally not taxable to the recipient and not deductible to the payer (different from child support and from some pre-1985 maintenance regimes). Lump sum payments are similarly outside the income-tax framework for the recipient. Tax position depends on individual circumstances and the ATO position at the time — confirm with your accountant.

Can spousal maintenance be paid out of super?

Not directly through a super split. A super split moves money from one super account to another; it doesn't release cash. If a party wants to use their super to fund a maintenance settlement, they need to first withdraw it (which requires them to have reached preservation age and met a condition of release), and then pay it as a cash settlement.

What if my former partner enters a new relationship?

The new relationship can be relevant. If the new relationship is itself a de facto relationship — generally 2+ years of cohabitation — the new partner's income becomes part of the assessment of the receiving party's resources. A new de facto partner with income capacity can defeat or reduce a spousal maintenance claim.

What if the paying party loses their job?

The paying party can apply to vary or terminate the maintenance order. The variation has to demonstrate a material change in capacity. Where the change is genuine and ongoing (not contrived), variations are commonly granted.

Can a BFA address spousal maintenance for an existing marriage as well as a future one?

Yes. A during-marriage BFA can include a spousal maintenance set-off that applies if the parties separate. The set-off is forward-looking — it operates from the moment of separation. The same government-benefits exception applies at the date the BFA takes effect.

Why this matters for your choice between BFA and consent orders

For most separating couples, consent orders are cheaper, simpler, and the right answer.

But spousal maintenance is one of the genuine reasons to consider a BFA instead. If:

• there's a significant income or earning-capacity disparity between you, and
• you (the higher earner) want certainty that future maintenance claims are locked out, or
• you (the lower earner) want to take a known lump-sum payment rather than retaining the future right to claim

...then a BFA can do something consent orders cannot. The premium price reflects the additional certainty.

In matters where income is similar, careers are similar, and neither party is on government benefits or in a vulnerable position, the difference often doesn't matter — consent orders are fine.

In matters where one party gave up career progression for caregiving, has a health condition affecting earning capacity, or is in a position where they might rely on government benefits, the BFA's set-off is a meaningful difference.

This is one of the choices we walk through during your initial consultation.