Earning more than your ex-partner? Do you have an obligation to pay spouse maintenance post separation?

Post-separation, one spouse, usually the spouse with the superior income, is often concerned about whether they may need to pay spousal maintenance to their former partner.  

In Australia, there is a legal obligation that may be imposed on one spouse to provide ongoing financial support to a former spouse post-separation, in certain circumstances. 

A former spouse’s entitlement to maintenance and the other spouse’s obligation to pay spouse maintenance is not automatic and in the absence of an agreement requires a court order.

The court’s power to make an order for spouse maintenance is found in section 72 of the Family Law Act 1975 (Cth) (“the Act”).

A spouse who seeks an order for a spouse maintenance payment may make the application at any time from separation or within 12 months of a divorce order taking effect. 

In considering whether it would be appropriate for the court to order one spouse to pay maintenance to the other, the applicant spouse must satisfy the court, with evidence, of the following two matters:

1. That they are unable to support their own reasonable expenses from their personal income or financial resources; AND

2. That the other party has the financial capacity to meet that support. 

It is important to note that spouse maintenance relates to the specific financial support needs of the applicant spouse and does not relate to the financial support needs of any child or children of the relationship which is separately determined through the Child Support Agency.

Factors to be considered

The court’s power to make an order for the payment of spouse maintenance is exercised on a discretionary basis and is subject to the relevant individual facts and circumstances of each application.

Section 75 of the Act sets out an extensive list of factors that the court may consider in determining whether to make an order for spouse maintenance. This includes, but is not limited to:

• The age and state of health of each of the parties

• The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

• The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income

• The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration. 

On 10 June 2025, amendments were made to the Act to include the following new considerations:

1. The effect of any family violence to which one party has subjected or exposed the other party.

2. The extent to which either party has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child.

In determining whether to make an order for spouse maintenance, the court will consider the current facts and circumstances of the parties such as their age, health, income and ongoing role as carer of children together with the facts and circumstances of relationship and how they may have impacted the post separation financial circumstances of the spouse who seeks an order for spouse maintenance.

By way of example, where there is a significant disparity of the parties income and one party has a reduced capacity to generate sufficient income or financial resources to meet their reasonable day to day living expenses and the other party does have the financial capacity to provide financial support, the court will make an order for spouse maintenance. 

Duration of a Spouse Maintenance Order

While the court can make an order for spouse maintenance on a final basis, it is most often made as an interim order pending the finalisation of the party’s property settlement. A spouse maintenance order is rarely made for an indefinite period of time and will usually be for a specific period of time to allow a party sufficient time to re-train and/or re-enter the work force. 

How to avoid a Spouse Maintenance Order 

Prior to marriage or the commencement of a defacto relationship or as part of a final property settlement, it is possible to oust the jurisdiction of the court to make an order for future spousal maintenance by entering into a financial agreement that is prepared pursuant to the Act. A financial agreement will set out the agreement for the payment of spouse maintenance in the event of the future breakdown of the relationship or as part of a final property settlement.

Prior to entering into the financial agreement, each party must receive independent legal advice. Once signed, the court will have no jurisdiction to hear and determine an application for spouse maintenance. 

In the event one party is a significantly higher income earner in the relationship, we strongly recommend considering a binding financial agreement as part of any property settlement to prevent a future claim for spousal maintenance. 

In the event you are separating and seeking advice on spousal maintenance or would like assistance in the preparation of a binding financial agreement, please feel free to reach out to our family law team.

Authors: Fiona Hoad and Katherine Jian

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.