To be eligible to make application to the court, either you or the other party must be an Australian citizen, ordinarily resident in Australia or present in Australia at the time the application is filed.

There are time limits for applying for spousal maintenance. Parties to a marriage cannot apply for a divorce until they have been separated for 12 months. When a decree absolute dissolving your marriage has been made, you only have 12 months from that date to apply for spousal maintenance (or property settlement if you have not already). This time limit is strict and it is often difficult to get permission to apply outside that period. The court will not grant leave unless it is at least satisfied:

• hardship will be caused to a party to the relevant marriage or a child if leave is not granted (but not always in those circumstances); or
• with spousal maintenance proceedings - at the end of the period within which proceedings could have been started without the need for the court’s leave, the applicant’s circumstances were such that the applicant would have been unable to support himself or herself without an income tested benefit, pension or allowance (that is, when the 12 month period expired, the applicant could only support himself or herself with an income tested pension, allowance or benefit).

A party to marriage is liable to maintain (that is financially support) the other party to the extent that he or she is reasonably able to do so if, and only if, the other party is unable to support herself or himself adequately whether:

• by reason of having the care and control of the 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,

having regard to any relevant matter referred to in Section 75(2) of the Family Law Act.

Section 75(2) of the Family Law Act provides that the Family Court should take into account the following matters:

1. The age and state of health of each of the parties.
2. 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.
3. Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years.
4. Commitments of each of the parties that are necessary to enable the party to support:

• himself or herself; and
• a child or another person the party has a duty to maintain.

5. The responsibilities of either party to support any other person.
6. Subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under -

• any law of the Commonwealth, of a State or Territory or of another country; or
• any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,

and the rate of such pension, allowance or benefit being paid to either party.

7. Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable.
8. 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.
9. The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party.
10. The duration of the marriage and extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
11. The need to protect a party who wishes to continue that party’s role as a parent.
12. If either party is cohabiting with another person - the financial circumstances relating to the cohabitation.
13. The terms of any order made or proposed to be made under section 79 in relation to the property of the parties.
14. Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
15. Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

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