Introduction
Q1: Will I automatically get spousal maintenance after we separate?
A: No. Spousal maintenance is not an automatic right. You have to pass a threshold test: you cannot adequately support yourself, and your ex has the capacity to pay. The whole point of maintenance is to cover your future needs, not to reward past contributions. Legal basis: Section 72 of the Family Law Act 1975
Q2: Does it matter that I can't work because I look after the kids?
A: Yes. Caring for a child who is not yet at school is a recognised reason you may be unable to support yourself. The court can order maintenance to cover the period until the child starts school and you can realistically return to work. Reference: Halley [2011] FMCAfam 296
Q3: Can my ex be forced to pay even if it leaves them short?
A: Not at the cost of their own reasonable needs, but they cannot hide behind a comfortable savings buffer either. The court will not let one side bank a thousand dollars a week while the other goes without basics. Reference: Simpkin [2020] FamCAFC 315
What is spousal maintenance and what is the legal test?
Spousal maintenance is money one former spouse pays the other after separation, because that other person cannot reasonably support themselves. It is separate from property settlement. Property division looks back at what each of you put in. Spousal maintenance looks forward at what you need to live.
The power comes from section 72 of the Family Law Act 1975, and it sets up a two-part threshold:
- Your need: you must show you cannot support yourself adequately, for a reason the law accepts: your age, a physical or mental health problem, caring for a child of the marriage, or any other adequate reason.
- Their capacity: your ex must actually be able to pay, after covering their own reasonable expenses.
If both limbs are met, the court decides what order is reasonable by working through the factors in section 75(2). In Badir [2022] FedCFamC1A 109, the Federal Circuit and Family Court confirmed the four-step process that judges follow:
"(1) To what extent can the applicant support him/herself? (2) What are the applicant's reasonable needs? (3) What capacity does the respondent have to meet an order? (4) If steps 1-3 favour the applicant, what order is reasonable having regard to s 75(2)?"
Step four is where most of the work happens. The key spousal maintenance factors the court weighs under section 75(2) include:
- Age and health: whether either person's age or a medical condition limits what they can earn.
- Care of children: whether you have the day-to-day care of a child of the marriage, which the court treated as decisive in Bucknell [2009] FamCAFC 177 and Halley [2011] FMCAfam 296.
- Income and earning capacity: the gap between what each of you earns now and can realistically earn in future.
- The standard of living during the marriage: what counts as a reasonable lifestyle, judged against how you lived together, as the court discussed in Lane [2015] FCCA 173.
- Financial resources: superannuation, an expected inheritance, even financial support from family.
- Outstanding legal costs: a heavy unpaid legal bill can be brought into account under section 75(2)(o).
Core Point: Spousal maintenance is a needs-based payment, not a windfall. The court runs a strict four-step process that weighs your inability to support yourself against your ex's genuine capacity to pay.
Why does it matter to understand the spousal maintenance eligibility test?
Getting the threshold wrong is costly. People often assume that need plus a wealthy ex equals an order. It does not. Misreading the test can leave you worse off than when you started:
- Cost orders against you: running a claim that never clears the section 72 threshold can see you ordered to pay the other side's legal costs.
- Financial instability: counting on maintenance that never arrives can drain your savings or super while you wait.
- Drawn-out litigation: ignoring the law's push toward a clean break under section 81 can drag you into appeals and years of stress.
Even a clear, sympathetic need does not guarantee long-term support. The tension between protecting a vulnerable spouse and finalising the financial relationship is starkest in the case below.
The couple had been together 17 years with a small asset pool of around $150,000. The wife was born with spina bifida, used a wheelchair, lived on a disability support pension, and was found to have no capacity for paid work for the rest of her life. On any view, her need was permanent and genuine.
The husband, earning $68,000 a year, argued for a clean break under section 81, which favours ending financial ties between separated couples. He said an open-ended order would tie them together indefinitely over a tiny pool.
Outcome: The court accepted the wife's need was real, but still capped the maintenance. It ordered $150 per week for 12 months from the sale of the home, to ease her into renting. With a small pool and a husband who was not a high earner, the clean break principle outweighed indefinite support.
The court was blunt that need and capacity do not, on their own, produce an order:
"It does not automatically follow that because the wife has a need and the husband has some capacity to meet that need that an order for spousal maintenance must be made. Whether an order is made is within the discretion of the court."
Key Point: Even a permanent disability does not lock in lifelong maintenance. The court still balances your need against the legislative goal of ending the financial relationship, and a small asset pool can tip the scales toward a time limit.
How do courts weigh the factors in different situations?
The same factors play out very differently depending on your circumstances. Here are the three situations that come up most often.
Scenario 1: You cannot work because you are caring for young children
Common Misconception: Maintenance is only for people who are completely broke.
Legal Truth: If caring for a young child stops you getting suitable work, you can qualify even if you walked away with some assets. What the court often debates is not whether to pay, but for how long.
In Bucknell, the Full Court spelled out the choice a judge faces on duration:
"A court making a spousal maintenance order often has a choice between, on the one hand, leaving the order to operate for an indefinite period, knowing that s 83 of the Act provides for variation if circumstances so change that variation is justified or, on the other hand, fixing a date of cessation, which often involves a prediction, albeit on the balance of probabilities, about future events."
The mother was the primary carer of a child born in 2006 who had not yet started school. She said she was struggling to make ends meet and could not hold down permanent work while the child was still at home. The father argued she was fit and able to work.
The court accepted she had a genuine need, but tied it to a clear endpoint. Once the child started school, her circumstances would change and she would have time to work.
Outcome: Maintenance was ordered until the child started school. The court fixed the support to the carer's actual disadvantage, not an open-ended figure.
The two cases show the court picking different durations from the same factor. Bucknell left the order open-ended because the child was years from school and the wife's path back to work was uncertain. Halley fixed an endpoint because the trigger, the child starting school, was clear and close.
| Comparison | Bucknell [2009] | Halley [2011] |
|---|---|---|
| Child's situation | 3-year-old in the wife's care | Child not yet at school |
| Path back to work | Years away and uncertain | Clear trigger: child starts school |
| Duration | Indefinite | Until the child starts school |
Key: The closer and more certain your return to work, the more likely the court fixes an end date rather than leaving the order open.
Practical takeaways if you are caring for children:
- Set out the child's age and likely school start date so the court can see when your disadvantage ends.
- Explain in plain terms why the caring role blocks suitable work right now.
- Do not assume some savings rule you out. The question is whether you can support yourself adequately, not whether you have any capital at all.
Scenario 2: A health condition or disability limits your earning capacity
Common Misconception: If I receive a disability pension, I cannot also get spousal maintenance.
Legal Truth: A pension is just one resource. If it does not meet your reasonable needs and your ex earns well, the court can still order maintenance. A high earner cannot dodge that by speculating about future redundancy, because section 83 lets them apply to vary the order if their situation actually changes.
"However, the primary judge failed to consider that if the respondent's circumstances suffered the feared setback, he could resort to s 83 of the Act and apply for it to be varied or discharged ... The primary judge would not have regarded it as appropriate to make an order which required the applicant to choose between forgoing her reasonable needs or drawing on her superannuation compared to the respondent whose reasonable needs were fully met."
The wife was 62, eight years older than her husband, a judge whose income was about seven times hers. She had been made redundant in 2005 and had a very low prospect of returning to full-time work. She also carried a moral duty to house their adult son for another year and help with his special needs, and she faced significant legal fees from the settlement.
Even though she received a substantial property settlement, that did not cover the gap between her income and her reasonable needs during the transition.
Outcome: The court ordered spousal maintenance of $500 per week for 18 months, on top of the property settlement, to bridge her into her new circumstances.
Practical takeaways if your earning capacity is limited by health:
- Put medical evidence in front of the court that explains exactly how your condition limits the work you can do.
- Show that your pension or benefit does not cover your reasonable needs.
- Point to the income gap. The bigger the disparity, the harder it is for a well-off ex to argue you should simply absorb the shortfall.
Scenario 3: There is a big income gap and your ex says you should retrain
Common Misconception: My ex earns a fortune, so they have to support me for good.
Legal Truth: A large income gap justifies an order, but the court usually expects you to work toward supporting yourself where you realistically can. That often means maintenance for a fixed period to let you retrain or finish study, not a payment for life.
Lane was a sixteen-year marriage. The court noted that over a long marriage the partners' contributions tend to even out, which sets the backdrop for how it then weighs a low earner's future needs:
"One of the consequences of a long marriage, with a significant focus on family and the raising of children, is that, over time, disparate contributions have a tendency to even out, with the result that considerations of justice and fairness lead easily to the conclusion that a percentage assessment of contribution of 50/50 should be made."
The wife was studying toward a BA and sought support while she finished. The marriage had lasted 18 years and there was a real income disparity, plus the husband had long service and sick leave benefits she could never build up, and a wealthy father treated as a financial resource.
She did not ask for open-ended support. She asked for help until she graduated and could earn her own income.
Outcome: The court ordered $350 per week for exactly two years, the time she expected to take to graduate and start working. The order matched the support to a concrete plan with an end date.
On the maintenance question, that same disparity drove the result. With a husband earning around $500,000 and a wife who was far from fluent in English and still studying, the court ordered $600 per week, but only until mid-2018, to give her time to improve her employability rather than support her indefinitely.
If you want to understand the difference between caring duties and earning capacity in more detail, see Spousal Maintenance for Stay-at-Home Parents in Australia, and for how the court treats a spouse who can work but chooses not to, see Spousal Maintenance: When Your Ex Can Work But Won't. If your separation was years ago, the time limits in Spousal Maintenance Australia: Claiming Years After Divorce may also apply to you.
Practical takeaways if there is a big income gap:
- If you are studying, give the court a clear graduation date and a plan for work afterwards.
- Be ready to show what steps you are taking toward self-support. A spouse who has not looked for any work since separation is a factor the court notices.
- Frame your claim as a bridge to independence where you can, since a defined plan is easier for the court to fund than open-ended support.
How can you strengthen a spousal maintenance claim?
A spousal maintenance application is an evidence exercise, not a plea for fairness. These are the lessons the nine cases teach.
Need and capacity alone are not enough. Rattigan shows the order is still discretionary. Even a permanent disability did not produce lifelong support once the small asset pool and the clean break principle were weighed in.
Tie your need to a clear endpoint. Halley and Gerry & Trantor both succeeded because the applicant could point to a concrete trigger, a child starting school or a graduation date, that told the court when support should stop.
Do not let a wealthy ex hide behind a savings buffer. Simpkin makes clear the court will not force you to drain your super while your ex banks a thousand dollars a week, and speculation about future redundancy is answered by section 83.
Use medical and financial evidence, not assertions. Hayton & Bendle turned on concrete findings about the wife's age, redundancy, very low work prospects and caring duties.
| Correct approach | Wrong approach |
|---|---|
| Set out your reasonable needs against your marital lifestyle | Inflate expenses or claim luxuries a small pool cannot fund |
| State precisely why you cannot support yourself | Rely on the bare fact that your ex is wealthy |
| Give a plan and an end date where you can retrain | Ask for open-ended support with no path to independence |
| Keep a record of your job search or study progress | Make no effort to work and assume it will not be noticed |
| Document anticipated costs like rent before you incur them | Wait until expenses are incurred before raising them |
