Spousal Maintenance: Section 75(2) Factors

The legal framework

Spousal maintenance is governed by Part VIII of the Family Law Act 1975 for married couples, with equivalent provisions for de facto couples in Part VIIIAB.

Three key sections form the foundation:

• Section 74 — Power to order maintenance: Gives the court power to order one party to a marriage to maintain the other party, to the extent the court thinks reasonable, taking into account the Section 75(2) factors.
• Section 75(2) — Matters to consider: Lists the factors the court must consider when determining maintenance, including age, health, income, earning capacity, and care of children. These same factors are also used for future needs adjustments in property settlement.
• Section 77 — Urgent maintenance: Allows the court to make an order for urgent maintenance before the final hearing if a party requires immediate financial support.

Eligibility for spousal maintenance

Two key elements must both be present before spousal maintenance will be ordered: the applicant must have a need, and the other party must have the capacity to pay.

Need

The applicant must be unable to support themselves adequately because of:

• Responsibility for caring for a child of the relationship under 18
• Age
• Physical or mental incapacity for appropriate gainful employment
• Any other adequate reason

Capacity to pay

The other party must have the financial capacity to make maintenance payments. The court considers:

• Their income and earning capacity
• Their financial resources
• Their own reasonable living expenses
• Other support obligations (including child support)

The Section 75(2) factors

Section 75(2) contains an extensive list of factors the court must consider when determining maintenance — and also when making future needs adjustments in property settlement. The most significant factors in maintenance applications are:

• Age and health (s 75(2)(a) and (b)): The age and state of health of each party. Older parties or those with health issues may have reduced earning capacity.
• Income and financial resources (s 75(2)(c)): The income, property, and financial resources of each party, including the outcome of any property settlement.
• Earning capacity (s 75(2)(d)): Physical and mental capacity for appropriate gainful employment. "Appropriate" considers the person's qualifications, experience, and the local job market.
• Care of children (s 75(2)(e)): Responsibility for caring for children under 18. Primary carers often have reduced capacity to work full-time.
• Eligibility for benefits (s 75(2)(f)): Whether the party is eligible for a pension, allowance, or benefit — including government income support.
• Standard of living (s 75(2)(g)): The standard of living that is reasonable in all the circumstances. Courts consider the standard enjoyed during the relationship.
• Effect on earning capacity (s 75(2)(k)): The extent to which the marriage has affected a party's earning capacity. Time out of the workforce to raise children may have long-term career impacts.

Types of spousal maintenance

Maintenance can be ordered in different forms depending on the circumstances of the parties.

Periodic maintenance

Regular ongoing payments — weekly, fortnightly, or monthly — are the most common form of maintenance. Periodic orders can be varied if circumstances change, and are usually made for a defined period rather than indefinitely.

Lump sum maintenance

A one-off payment to meet maintenance needs. Lump sum orders provide certainty and finality, may be paid from or in lieu of part of the property settlement, and cannot be varied once paid.

How the amount is determined

There is no formula for calculating spousal maintenance. Courts consider the gap between the applicant's reasonable needs and their ability to meet those needs, assessed against the payer's capacity. The assessment follows four steps:

1. Applicant's reasonable needs: What are the applicant's reasonable weekly or monthly expenses for housing, utilities, food, transport, medical, and other necessities? This is not based on the marriage living standard alone but on what is reasonable post-separation.
2. Applicant's income and resources: What income does the applicant have (or can reasonably earn)? What property and financial resources are available from the property settlement? What government benefits might they receive?
3. The gap (shortfall): The difference between needs and income represents the shortfall that maintenance might fill. Maintenance may cover all or part of this gap depending on the other party's capacity.
4. Payer's capacity: The amount ordered cannot exceed what the payer can reasonably afford after meeting their own reasonable needs and any other obligations (including child support).

Duration and variation

Spousal maintenance is not necessarily permanent. Orders can be time-limited and varied if circumstances change.

Maintenance ends in the following circumstances:

• Expiry of the time period: If the order specifies a duration (e.g., 3 years), it ends when that period expires.
• Remarriage of the recipient (married couples): For married couples, maintenance ends automatically upon the remarriage of the receiving party. This does not apply to de facto couples.
• Death of either party: Maintenance obligations cease upon the death of either party.
• Court variation or discharge: Either party can apply to vary or discharge a maintenance order if circumstances have materially changed — for example, if the recipient gains employment or the payer loses their job.

Common questions