Published: Mon, Apr 2nd, 2018 by Michael Robinson

Liability to pay spousal maintenance arises when one partner has difficulty meeting their reasonable expenses upon separation and that difficulty has come about as a result of one or more of the following factors:

  • The ability to become self-supporting;
  • Responsibilities for the care of minor children;
  • The standard of living during the relationship;
  • Any physical or mental disability;
  • Any inability to obtain work; and
  • Undertaking education or training

The most common situation in which spousal maintenance issues arise is where one partner has stopped working to care for children while the other partner continues to work full time. Assessing spousal maintenance can be seen as a two-step process. The first step is to assess whether a liability to pay spousal maintenance exists. This can be assessed by looking at the factors identified above.

The second step, once liability is established, is to assess the amount of maintenance payable and the period of time for which those payments should continue. The amount will be determined by looking at the income and expenses of each partner and determining a fair amount. The period of time for which spousal maintenance is payable will be the amount of time it takes for the partner who is receiving maintenance to get themselves into a position to meet their own expenses. There is no set time period and it will be dependent on the particular circumstances of each particular case.

It is important to obtain legal advice in a timely manner after separation. If you are liable to pay spousal maintenance, attempts should be made to resolve the issue early on. Otherwise, there is a risk the other partner may make an urgent application to the Family Court for interim maintenance, without notice to you. Spousal maintenance is quite distinct and separate from child support as the former relates to the costs for the partner themselves whereas the latter relates to costs for the children.

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