What is the difference between spousal maintenance and child support?
It is a common misconception that child support rolls into spousal maintenance or that spousal maintenance only applies to ex-spouses who had children with their former partner. What you may not realise is that at the end of a relationship, one party may be liable to make a lump sum or ongoing payments to support their ex even if they did not share any children.
Here’s how Spousal Maintenance differs from Child Support.
What is Child Support?
Child Support is financial support provided by a parent specifically for the needs of their child/ren. The amount of Child Support paid may be made through an arrangement between the two parents or can otherwise be negotiated between the parents and formally agreed upon in a Binding Child Support Agreement or a Limited Child Support Agreement. The parties will need to seek independent legal advice before entering into a Binding Child Support Agreement. Typically, an Agreement will cover how much the payments should be and when the payments will be made (or if the payment is a one-off, lump sum).
A misconception about Child Support is that it is handled by the courts. Child Support matters are handled by the Child Support Agency (part of Services Australia) and payments may be assessed by the Department of Human Services either in lieu of one of the aforementioned Agreements or in conjunction with it.
Generally, the Federal Circuit and Family Court of Australia does not deal with Child Support matters.
What is Spousal Maintenance?
Spousal Maintenance is a type of financial support paid by one former partner to the other partner in cases where either a marriage or de facto relationship has broken down and one party was reliant upon the other for financial support. In these circumstances, Spousal Maintenance would be required to help the reliant party pay for reasonable living expenses.
A successful application for Spousal Maintenance requires two key criteria to be satisfied:
- That the applicant has a need for support; and
- That the respondent has the financial capacity to provide support.
The person making the claim must be able to prove that they were dependent on their spouse and do not otherwise have the means to support themselves financially. The applicant typically would have been in a situation where their former spouse or de facto was supporting them during the relationship.
The Court will consider a number of factors when the applicant seeks Spousal Maintenance, such as the age of each party, whether any children are involved, each parties’ income and assets and their capacity to work.
Are there time constraints on claiming Spousal Maintenance?
Yes, if you want to seek Spousal Maintenance from your former spouse or de facto you must do so within 12 months from the date a divorce order takes effect or 24 months from the time your de facto relationship broke down.
In circumstances where the applicant can demonstrate hardship, the court is permitted to grant an extension on these time limitations, even if a property settlement has been finalised.
There is no one-size-fits-all approach to handling Child Support matters and an individual’s circumstances will need to be considered for every case. If you have separated from the other parent of your child/ren and want to seek Child Support or you are having difficulty reaching an agreement about private Child Support payments, you should speak to an experienced family lawyer for assistance.
You should also seek legal advice if you were financially dependent on your former partner and want to pursue Spousal Maintenance, regardless of whether you had children with them.