Spousal Maintenance

A spousal maintenance order is final. We ensure you get it right the first time.

Spouses have a legal duty to maintain one another, during the marriage and in some instances after divorce. Spousal maintenance can only be claimed together with the institution of divorce proceedings. The Court’s have a discretion when determining and awarding spousal maintenance, such as the lifestyle enjoyed, income of the spouses, earning capacities of the spouses, access to resources and assets as well as the conduct of the parties in the marriage and the circumstances leading to the breakdown of the marriage. The duration for which a court will award spousal maintenance post-divorce will also depend on a variety of factors.

It is important to note that once a court has made an award for spousal maintenance, this is final in nature and cannot be revisited at a later stage. It is therefore imperative that you are properly guided in the respect by an experienced Family Law attorney.

It is often the case that experts are relied on to assist the Court in determining spousal maintenance, such as industrial psychologists, who will assess the circumstances and the ability of the spouse claiming spousal maintenance to earn.

Considering that divorce proceedings can take time to finalise, a spouse will often instituted interim maintenance applications to assist with financial needs pending the finalisation of the divorce proceedings. These proceedings are known as Rule 43 proceedings in the High Court and Rule 58 proceedings in the Regional Court. These proceedings are often couple with maintenance claims for children, as well as interim contact arrangements. It is also important to consider that a spouse claiming interim maintenance is often financially stressed, and as such, the spouse in question may also make a claim for a contribution to legal costs in the interim to assist in litigating the divorce proceedings so that spouse is not financially prejudiced in the divorce process, where the other spouse is disproportionately able to access adequate resources to litigate.

FAQs

Am I entitled to spousal maintenance after divorce?

You can claim spousal maintenance when you start divorce proceedings, but it’s not an automatic right. A court has the discretion to award it based on various factors. These include the standard of living during the marriage, each spouse’s income and earning potential, their assets, and sometimes even the conduct of the parties that led to the divorce. Because a spousal maintenance order is final and cannot be changed later, it’s crucial to get expert legal advice to ensure your claim is properly handled from the start.

How can I manage financially while the divorce is still ongoing?

Recognising that divorces can take a long time, the law provides a solution for immediate financial help. You can bring an interim application to the court, known as a Rule 43 (in the High Court) or Rule 58 (in the Regional Court) application. Through this process, you can ask the court to order your spouse to pay temporary maintenance to cover your living expenses until the divorce is finalised.

What if I can't afford a lawyer but my spouse can?

The interim application (Rule 43 or Rule 58) also allows you to ask for a contribution towards your legal costs. This is a crucial mechanism designed to ensure a fair legal process. It prevents a situation where one spouse is at a disadvantage simply because the other spouse has more financial resources to fund the litigation. This helps level the playing field, allowing you to be properly represented in the divorce proceedings.

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