Spousal maintenance orders, or alimony as it is known in the United States, are payments made from one spouse to another in circumstances where they are unable to adequately support themselves. In essence, spousal maintenance orders are made in circumstances where, due to circumstances such as the care of a child of the relationship, a disability or the fact that a party has been in a relationship for an extended period of time (and as a result has lost certain skills required to re-enter the workforce) a party is unable to adequately support themselves and the other party has the capacity to support the spouse in need.
In making an Application and in determining whether a spousal maintenance Order should be made, the Court will consider capacity of the respondent, or the person who will be liable to pay, to pay that amount by way of spousal maintenance. Capacity is viewed in reference to a party’s income and their expenditure as well as the financial resources available to that party.
Such spousal maintenance payments can be made:
- During the marriage;
- 12 months after separation; or
- Within 12 months of a separation if it is a de facto relationship.
Often times in family law proceedings urgent spousal maintenance can be ordered in circumstances where one party does not have the immediate access to resources that are sufficient to support themselves. In such circumstances it would be necessary to demonstrate that the person making the application is doing all things reasonably necessary to meet their reasonably necessary living expenses and show that the person liable to pay does have a capacity to contribute towards those reasonably necessary living expenses.
The capacity to pay is often defined as having surplus income following the payment of all necessary outgoings each month by the person.