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Spousal maintenance issues only apply to people who are or were married. A "spouse" is a husband or wife and does not include de-facto partners. Spousal maintenance is the payment of maintenance to a husband or wife by a wife or husband. The relevant law is contained in the Family Law Act 1975. It sets out when one spouse must pay maintenance to the other spouse.

A party to marriage is liable to maintain (that is financially support) the other party to the extent that he or she is reasonably able to do so if, and only if, the other party is unable to support herself or himself adequately whether:

  • by reason of having the care and control of the child of the marriage who has not attained the age of 18 years;
  • by reason of age or physical or mental incapacity for appropriate gainful employment; or
  • for any other adequate reason,

having regard to any relevant matter referred to in Section 75(2) of the Family Law Act.

Initially the obligation is on the applicant to persuade the court that he or she is in need of spousal maintenance. Often orders made in relation to spousal maintenance are of limited duration, eg whilst the spouse retrains so as to obtain employment or whilst a child is very young.

Spousal maintenance can take a number of forms including the payment of a periodic sum or the transfer of property or chattels. These orders may be made at the same time that orders are made for property settlement, that is, orders for the adjustment of the parties' property and assets between themselves. It is necessary in that event to specify what if any part of any payment of a lump sum, or transfer or settlement of property relates to spousal maintenance and the value that is attributable to the provision of maintenance.

Spousal maintenance orders continue until parties remarry (except in special circumstances) or upon the death of the person entitled to receive the maintenance or the death of the person required to make the payments. If somebody is receiving spousal maintenance, that person is obliged under the Family Law Act to inform the payer without delay of his or her remarriage. If monies have been paid after remarriage, then they may be recovered through the Family Court.


If you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation, contact Johnston Withers Barristers & Solicitors. They are located at 17 Sturt Street, Adelaide SA 5000 or call them on (08) 8231 1110.

Johnston Withers comprises fourteen lawyers, two paralegals and nineteen support staff. We deliver legal services to clients ranging from large corporations, trade unions, and community organisations to small businesses, families and individuals. Johnston Withers have permanent offices in Adelaide, Port Augusta and Whyalla, and visit Clare regularly. Service delivery is provided through a team structure with teams being organised to meet client needs quickly and cost effectively.

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