Introduction
Q1: If my ex can work but chooses not to, do I still have to pay spousal maintenance?
A: Not automatically. The court asks whether your former partner can genuinely support themselves, and it measures that by their real earning capacity, not the income they happen to declare. If they can reasonably work and meet their own needs, the threshold for maintenance is not met. Reference: Halley [2011] FMCAfam 296
Q2: Can I still claim maintenance if I have not been looking for a job?
A: You can, but only where a real barrier explains it. Not job hunting will not sink your claim if your age, health, English, or care of young children genuinely limits what you can earn. The court asks why you are not earning, not just whether you are. Reference: Lane [2015] FCCA 173
Q3: If a court orders maintenance, does it last forever?
A: Usually not. The law leans toward ending financial ties between former partners, so courts often set an end date or tie support to the point where you can stand on your own. Even a permanent inability to work can draw only a limited, transitional payment. Legal basis: Section 81 of the Family Law Act 1975
What does it mean to be unable to support yourself adequately?
Spousal maintenance is not a reward for being married to someone who earns more. It is financial support one former partner pays the other, and you only reach it by passing a needs test set out in the Family Law Act.
Section 72 is the gateway. It sets out when one party becomes liable to maintain the other.
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether by reason of having the care and control of a 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.
—— section 72(1) of the Family Law Act 1975
Read that phrase again: unable to support herself or himself adequately. The test is need, and the bar is set at whether you can adequately support yourself, not at whether your former partner is rich. If you can meet your own reasonable needs, you fail the threshold no matter how much the other side earns.
Here is the part people miss. The court does not just look at the income you currently take home. It looks at what you could reasonably earn. That is your earning capacity, and it comes straight out of the future needs factors in section 75(2), which direct the court to weigh the age and state of health of each party and their physical and mental capacity for appropriate gainful employment. So a spouse who is able to work and simply chooses not to cannot point at a low bank balance and call it need.
The threshold therefore breaks down into three questions:
- Can you support yourself adequately? This is the section 72 gate. If yes, the claim ends here.
- What can you actually earn, not just what do you earn now? The court assesses real earning capacity under section 75(2), so voluntary unemployment does not create a need.
- Can the other party pay? Under section 74 the court only orders what the payer can reasonably afford after meeting their own commitments.
What capacity for appropriate gainful employment means in practice was spelled out in Lambton [2017] FCCA 1744, where the wife was a trained professional who had stopped work.
All the matters accepted by her Honour at trial in relation to the mother's incapacity to work continue today and have been presented to me in a format that I find is cogent and my finding today that she is unable to work due to her mental incapacity for appropriate gainful employment at this time.
Capacity is also measured against your reasonable needs. In Badir [2022] FedCFamC1A 109 the appeal court framed the inquiry as how far the applicant can support herself and what her reasonable needs are, and it upheld an interim order once her unavoidable living expenses were found to exceed her available income.
Core Point: The question is never just how much you earn today. It is how much you could reasonably earn. If you can support yourself adequately, the door to maintenance stays shut, however well off your former partner is.
Why does the line between cannot work and will not work matter so much?
Because that line is a gate, not a dial. Once the court decides you can support yourself, your claim is over, and the size of your former partner's income stops mattering. There is no partial credit for being married to a high earner.
The same line runs the other way for the person paying. If you are trying to reduce or end a maintenance order, the most direct route is to show the court that your former partner has real, usable earning capacity. That is what people are really asking when they search for how to get out of paying spousal maintenance. You do not argue that you cannot afford to be generous. You show that the other side can support themselves.
Get the line wrong and the consequences are concrete:
- If you have genuine earning capacity and do not use it, the court can treat you as able to support yourself and refuse maintenance outright.
- For the payer, evidence that the other side can work is a direct answer to a claim, and a ground to bring an existing order to an end.
- Where your capacity is only reduced for a while, courts tend to grant short, time-limited support rather than open-ended payments.
The fight usually lands on one phrase, fit and able to work, and that is exactly where Halley was decided.
After separation the mother applied for spousal maintenance. Both parents were in good health, neither had re-partnered, and their incomes were close to equal. The father was already paying child support of about 140 dollars a week. The mother was the primary carer of their child, who was not yet old enough for school.
The father resisted the claim head on. He argued the mother was fit and able to work full time and that, with their incomes virtually equal, she had no real need for maintenance.
Outcome: The court agreed she was healthy, but found that being healthy was not the same as being able to work. She could not get permanent employment while the child was below school age, so the father was ordered to pay 120 dollars a week until the child started school or turned 6. Support was granted, but only for the genuine constraint and only until it lifted.
I consider it proper to make an order that the father pay to the mother by way of spousal maintenance the sum of $120.00 until the child starts school or attains the age of 6 years, whichever shall first occur.
Key Point: Fit and able to work is where these cases are won and lost. The court does not stop at whether you are healthy. It asks whether you can actually use that capacity right now.
How do courts decide in different situations?
The answer turns on why you are not earning. Three situations come up again and again, and they end very differently.
Scenario 1: You can work later, but not yet
Common Misconception: Caring for young children or retraining means support keeps running until you are fully back on your feet, however long that takes.
Legal Truth: Where your reduced capacity is temporary, the court usually grants short, time-limited maintenance to bridge the gap, not an open-ended payment. It expects you to move toward supporting yourself.
I consider, as was conceded by counsel for the wife, that the husband's obligation to pay spousal maintenance should not be open-ended. It does need to be stressed again that the disparity in the income of the parties has been reflected in the disproportionate share of the assets received by the wife.
The wife was working part time and caring for young children while the husband earned about 3,050 dollars a week. The court accepted it was very difficult for her to work full time while the children were young, but found she would be somewhat better placed to do so within about three years.
The wife also received a larger share of the property, which the court treated as already compensating her for the gap in earning power between them.
Outcome: The husband was ordered to pay 275 dollars a week, but only for three years. The court fixed an end date because her path back to fuller work was reasonably clear, and it did not want the support to run on indefinitely once she could earn more.
Compare that with a case where the future was murkier. The decision on whether to fix an end date or leave the order open turns on how predictable your return to work is.
| Comparison | F & F [2009] | Bucknell [2009] |
|---|---|---|
| Why earning capacity was reduced | Young children, already working part time | Young child in primary care, partway through a university degree |
| Was the return-to-work date predictable? | Yes, about three years away | No, finishing the degree and finding work were not assured |
| Order type | Fixed end date | Indefinite |
| Outcome | 275 dollars a week for three years | 530 dollars a week with no end date |
Decisive factor: In Bucknell [2009] FamCAFC 177 the Full Court was not satisfied that the timing of the wife's return to work was predictable enough to set a cut-off date, because her degree was years away, its completion was not certain, and a job at the end of it was not assured. When your return to work is reasonably clear, expect a fixed term. When it is genuinely uncertain, an open-ended order is more likely.
In this situation the following usually help:
- Get evidence of when you can realistically return to work, such as a course end date or the year your child starts school.
- Be ready for a time-limited order and plan to support yourself by that date.
- If your path back to work is genuinely uncertain, put that evidence in, because it can justify an open-ended order.
Scenario 2: A lasting barrier means you genuinely cannot work
This is the situation people assume is the strongest, and it is, but it still does not guarantee support for life.
Common Misconception: A serious health problem or older age guarantees long-term maintenance.
Legal Truth: Even a permanent inability to work does not lead to indefinite payments by default. The court still leans toward ending the financial relationship, so it may fund only your transition to a new standard of living.
We live in a society in which people expect that upon separation they will be required to share property with their former partner, but they do not expect that they will be required to share their income with their former partner for years or even decades after a relationship has ended. This expectation is recognised in s 81 of the Family Law Act, which emphasises the desirability of ending financial relations between separated parties.
The wife had spina bifida, was confined to a wheelchair, and remained on a pension. The court found she had no capacity for paid employment for the rest of her life. The asset pool was small, and contributions were assessed at about 70 per cent to the husband and 30 per cent to the wife, who also owed 21,000 dollars in legal fees. The husband was in good health and earning about 68,000 dollars a year.
There was no dispute that her need was genuine and permanent. The hard question was how long the husband should have to fund it.
Outcome: The court ordered only 150 dollars a week for 12 months, starting when her home was sold and she had to find rental accommodation. Even a lifelong incapacity drew just transitional support, because section 81 pushed the court toward ending the financial relationship rather than locking in payments for decades.
The same pattern shows up where age is the barrier. In Hayton & Bendle [2010] FamCA 592 a 62 year old wife who had been made redundant and had a very low prospect of returning to full time work received 500 dollars a week, but only for 18 months. A genuine barrier opens the door, yet the clean break principle still tends to put a limit on how long the door stays open.
In this situation the following usually help:
- Provide medical or vocational evidence of the barrier, in the form of reports rather than assertions.
- Expect the court to ask what standard of living is reasonable for you now, not to preserve the one you had during the marriage.
- Remember that a property settlement which meets your needs can reduce or remove a maintenance claim.
Scenario 3: You have not been looking for work
This is the scenario closest to the question that worries both sides. The recipient fears that not applying for jobs looks like dodging work. The payer hopes that exact fact ends the claim.
Common Misconception: If I have not applied for any jobs, the court will assume I am avoiding work and refuse maintenance. From the other side, my ex has not even tried to find work, so I should not have to pay.
Legal Truth: Not job hunting is not fatal on its own. The court asks why. If a real barrier explains it, your claim can still succeed. But if you have genuine, usable capacity and simply choose not to work, the court can treat you as able to support yourself and refuse the claim.
This was a 16 year marriage with two children, where the husband earned a salary of about 560,000 dollars a year. The wife had migrated to Australia during the marriage, was far from fluent in English, and was studying. She had not applied for any jobs since separation.
The husband could have argued she was simply not trying. The court instead looked at why she was not working, and found her earning capacity was genuinely low, held back by her limited English and by childcare commitments that arose from decisions the couple had made together.
Outcome: The wife was awarded 600 dollars a week until 31 July 2018, roughly three years of support. Not applying for jobs did not defeat her claim, because the court found her low earning capacity was real and partly a product of the marriage itself.
The lesson cuts both ways. A recipient is not punished simply for not having a job, as long as a real reason explains it. But the protection only reaches people whose capacity is genuinely limited. It does not stretch to someone who could readily work and chooses not to.
In this situation the following usually help:
- Explain the barrier behind not working, such as limited English, retraining, or caring responsibilities.
- Keep evidence of any steps you are taking toward work or study.
- On the paying side, show the other person has real, usable capacity, not just that they could in theory get a job one day.
For related limits and tests around maintenance, it helps to read around the topic. For how the clock works once you are divorced, see Spousal Maintenance Australia: Claiming Years After Divorce. For how courts treat a parent who stepped back from work to raise children, see Spousal Maintenance for Stay-at-Home Parents in Australia. And for support that runs to grown children rather than a former partner, see Adult Child Maintenance in Australia: Eligibility and Why Applications Fail.
Summary
Earning capacity beats actual income. The court measures what you can reasonably earn, not the income you choose to take, so voluntary unemployment does not create a need under section 72.
Fit and able to work is the real battleground. Being healthy is not the same as being able to work right now, which is how the mother in Halley won support while caring for a pre-school child.
Temporary barriers get time-limited support. When the court can see when you will be back on your feet, it fixes an end date, as it did in the F & F order of three years.
Even a permanent barrier rarely means forever. Section 81 pushes courts to wind up financial ties, so a lifelong incapacity drew only transitional support in Rattigan.
Not job hunting is not fatal, but idleness is not protected. A real barrier explains a gap in work, as in Lane, yet someone who could readily work and will not cannot claim need.
| Correct approach | Wrong approach |
|---|---|
| Show why you genuinely cannot support yourself yet, with evidence of health, age, language, or care duties. | Assuming a low income alone proves need when you could reasonably earn more. |
| Expect time-limited support and plan to become self-supporting. | Treating maintenance as a permanent share of your former partner's income. |
| As the payer, prove the other side has real, usable earning capacity. | Arguing only that you would prefer not to pay, without addressing their capacity. |
| Bring medical or vocational evidence for any claimed incapacity. | Relying on bare assertions that you cannot work. |
