Spousal Maintenance in Australia: Who Can Claim?

What Maintenance Is: Sections 72 and 74

For married parties, section 72 of the Family Law Act 1975 (Cth) states the principle: a party to a marriage is liable to maintain the other party, to the extent that they are reasonably able to do so, if the other party is unable to support themselves adequately — whether by reason of having the care of a child of the marriage under 18, by reason of age or physical or mental incapacity for appropriate gainful employment, or for any other adequate reason. Orders are made under section 74.

"Adequately" does not mean bare subsistence. It is assessed by reference to what is reasonable in all the circumstances of the particular case, including the standard of living contemplated by the statutory considerations. It is not a guarantee of the standard of living enjoyed during the relationship either.

A married party can seek maintenance while living together, after separation, and after divorce, subject to the time limits discussed below.

De Facto Maintenance: the Section 90SB Gateway

De facto maintenance is governed by its own provisions in Part VIIIAB. The equivalent principle is in section 90SF(1) and orders are made under section 90SE. A married-party provision such as section 72, 74 or 82 does not govern a de facto claim.

Before making a maintenance order for a former de facto partner, the Court must be satisfied of at least one of the section 90SB matters:

• the period, or the total of the periods, of the de facto relationship is at least two years;
• there is a child of the de facto relationship;
• the applicant made substantial contributions of a kind mentioned in section 90SM(4)(a), (b) or (c) and a failure to make the order or declaration would result in serious injustice to the applicant; or
• the relationship is or was registered under a prescribed law of a State or Territory.

Section 90SB is an eligibility gateway. Satisfying it permits an application; it does not establish need, capacity or any particular outcome.

Geography: Section 90SD and Western Australia

Separately from section 90SB, section 90SD imposes a geographical requirement for de facto maintenance orders under sections 90SE and 90SG. It can be satisfied in either of two ways:

• Section 90SD(1). Either or both parties were ordinarily resident in a participating jurisdiction when the application was made, and either both parties were ordinarily resident during at least a third of the relationship, or the applicant made substantial contributions of a kind mentioned in section 90SM(4)(a), (b) or (c), in one or more States or Territories that are participating jurisdictions at the application time; or
• Section 90SD(1A). The alternative condition — the parties were ordinarily resident in a participating jurisdiction when the relationship broke down. Where this alternative is relied on, the combined requirements in section 90SD(1) do not additionally have to be met.

Western Australia did not refer its de facto financial powers to the Commonwealth in the way the other States did, so de facto maintenance with a Western Australian connection is generally dealt with under Western Australian legislation and processes rather than the federal Part VIIIAB regime. The federal regime does not apply uniformly across Australia for de facto financial matters.

Eligibility and jurisdiction for a de facto property claim are a different question, with their own gateway and their own geographical test. That topic is covered in our guide to de facto property claims after separation.

Maintenance Is Not Child Support

Child support is financial support for a child, administered by Services Australia under the separate child support legislation and generally calculated by formula. Spousal or de facto maintenance is support for the former spouse or partner themselves, decided by the Court or agreed between the parties on the basis of need and reasonable ability to pay.

The two run independently: a person may receive one, both or neither. Child support actually paid or received is relevant to each party's budget in a maintenance case. Our article on parental financial responsibility deals with obligations to children.

Maintenance Is Not Property Settlement

A property settlement alters existing interests in property and liabilities — what each person ends up with. Maintenance looks forward to whether one party needs financial support and whether the other can reasonably provide it. The two interact: a settlement that leaves the recipient with income-producing assets may remove any need for maintenance, while a delayed settlement may make interim maintenance necessary in the meantime. See our guide to property settlement after separation for how property matters are decided.

Need and Reasonable Ability to Pay

Two questions must both be answered in the applicant's favour.

• Inability to support oneself adequately. Can the applicant meet their own reasonable expenses from their income, assets and financial resources? If they can, no maintenance is payable however large the income gap. The inability must also arise for a reason the statute recognises — care of a child of the marriage or de facto relationship under 18, age or physical or mental incapacity for appropriate gainful employment, or another adequate reason.
• Reasonable ability to pay. Is the other party reasonably able to contribute after meeting their own reasonable commitments, including child support? Capacity is assessed on the whole financial picture, not on gross income alone, and can be affected by drawings, resources and the realistic availability of funds.

Common reasons an applicant may be unable to support themselves include care of young children, reduced earning capacity after time out of the workforce, age where retraining is not realistic, illness or incapacity, and the financial consequences of family violence. Where family violence is part of the picture, our article on family violence intervention orders in Victoria explains the protective framework that often sits alongside a maintenance application.

The Statutory Considerations: Sections 75(2) and 90SF(3)

In exercising jurisdiction under section 74, the Court takes into account only the matters in section 75(2). The de facto equivalent is section 90SF(3), which applies to orders under section 90SE. The matters include:

• the age and state of health of each party;
• the income, property and financial resources of each party and their physical and mental capacity for appropriate gainful employment;
• the extent to which either party has the care of a child under 18, including the need to provide appropriate housing for that child;
• commitments necessary to enable each party to support themselves, a child or another person they have a duty to maintain;
• the effect of the relationship on the earning capacity of the party seeking maintenance;
• the duration of the relationship;
• a suitable standard of living in all the circumstances;
• the eligibility of either party for a pension, allowance or benefit, and any child support paid or payable; and
• any other fact or circumstance that, in the Court's opinion, the justice of the case requires to be taken into account.

These maintenance provisions were not restructured in the way the property provisions in sections 79 and 90SM were. They were, however, amended. The Family Law Amendment Act 2024 (Cth) inserted a new paragraph (aa) into each of sections 75(2) and 90SF(3) — the effect of any family violence to which one party has subjected or exposed the other party, including on any of the other matters listed — and recast the child-care paragraph to refer expressly to appropriate housing for the child. The general justice-of-the-case consideration was not new: it already existed, and the amendments repealed it at its former paragraph position and re-enacted it at paragraph 75(2)(r) and paragraph 90SF(3)(u). Those amendments commenced on 10 June 2025.

Under the application provision in item 68 of Schedule 1 to that Act, the amendments apply to proceedings instituted on or after 10 June 2025 and to proceedings instituted before, and not finally determined before, that day — other than proceedings in which a final hearing had already commenced.

No Formula, No Calculator

There is no formula and no reliable online calculator for maintenance. The exercise is budget-based and evidence-based, and usually compares, for each party: gross and net income; tax and compulsory deductions; child support paid or received; reasonable living expenses; rent or mortgage and other housing costs; health, medical and child-related costs; realistic earning capacity given age, skills, health and care responsibilities; and available assets and financial resources. A discretionary balancing exercise of that kind cannot be reproduced by a calculator.

Forms of Maintenance Orders

The forms of relief come from the general powers in section 80 for marriages and section 90SS for de facto relationships. Both allow the Court to:

• order payment of a lump sum, in one amount or by instalments;
• order payment of a weekly, monthly, yearly or other periodic sum;
• order that a specified transfer or settlement of property be made by way of maintenance;
• order that payment be wholly or partly secured as the Court directs, and that necessary documents be executed;
• order that payments be made direct to a party, to a trustee, to the Court or to a public authority for the party's benefit; and
• make a permanent order, an order pending the disposal of proceedings, an order for a fixed term or until further order, and impose terms and conditions.

Practical arrangements are often built on those powers — for example, an order that the payer meet the rent, mortgage instalments or particular outgoings as periodic maintenance. Merely allowing a former partner to remain in a property by informal agreement is not a maintenance order; occupation is usually dealt with by consent orders or by an injunction or occupation order, and it takes effect as maintenance only if an order says so.

Where an order for a lump sum, or a transfer or settlement of property, is made wholly or partly for maintenance, section 77A (marriage) and section 90SH (de facto) require the order to be expressed as an order to which the section applies and to specify the portion attributable to maintenance. If that is not done, the payment or transfer is generally not treated as being for maintenance — which matters when a later maintenance application is made.

Urgent and Interim Maintenance

Urgent maintenance is a distinct power: section 77 for spousal maintenance and section 90SG for de facto maintenance. Two things must appear to the Court: that the party is in immediate need of financial assistance, and that it is not practicable in the circumstances to determine immediately what order, if any, should be made. The Court may then order payment, pending the disposal of the proceedings, of such periodic sum or other sums as it considers reasonable. It is a holding remedy, not a final assessment of entitlement.

An interim maintenance application is the ordinary application for maintenance pending final orders. It is decided on the usual need-and-reasonable-ability material and will often proceed on fuller evidence than an urgent application. The urgent provisions exist because immediate assistance may be required before the material needed for an ordinary interim assessment is available.

Interim maintenance is frequently sought where property proceedings will take time and one party has limited income or access to funds in the meantime.

Duration and Cessation

Maintenance is not necessarily indefinite. An order can be made for a fixed period — while a recipient retrains, while children are young, or pending final property orders — or until further order. Orders also cease by force of statute, and the marriage and de facto provisions differ.

Section 82 (spousal maintenance orders): an order ceases on the death of the party for whose benefit it was made; it ceases on the death of the person liable to pay, subject to a narrow exception for certain older orders; and it ceases on the remarriage of the receiving party unless a court, in special circumstances, otherwise orders. Money paid for a period after a remarriage may be recovered, the recipient must notify the payer of the remarriage without delay, and arrears already due are not affected.

Section 90SJ (de facto maintenance orders): an order ceases on the death of either party, and on the marriage of the party for whose benefit it was made unless a court, in special circumstances, otherwise orders. The same notification, recovery and arrears rules apply.

Entering a new de facto relationship does not automatically end an order under either provision. It can still matter: the financial circumstances of cohabitation may affect need, and entering a stable and continuing de facto relationship is expressly recognised as a change of circumstances on a variation application.

Varying, Suspending or Discharging an Order

Section 83 applies to spousal maintenance orders and section 90SI to de facto maintenance orders. Each allows the Court to discharge an order if there is any just cause, suspend its operation wholly or in part, revive a suspended order, or vary it.

There is no free-standing power to re-open an order because something has changed. To increase or decrease the amount payable, the Court must be satisfied of a specified ground:

• that since the order was made or last varied the circumstances of the person for whose benefit it was made have so changed (including that person entering a stable and continuing de facto relationship), or those of the payer, or those of the estate where a legal personal representative is involved, as to justify the change;
• that since the order was made or last varied the cost of living has changed to such an extent as to justify the change — the Court has regard to the Consumer Price Index, and generally at least 12 months must have elapsed since the order was made or last varied on that basis;
• where the order was made by consent, that the amount ordered is not proper or adequate; or
• that material facts were withheld from the Court, or material evidence previously given was false.

Death is not a variation ground: it is dealt with by the cessation provisions in sections 82 and 90SJ.

Time Limits and Leave

The general limits are:

• Married parties — proceedings must generally be instituted within 12 months after the divorce order took effect, or within 12 months after a decree of nullity was made: section 44(3). Outside that period, proceedings may be instituted with the consent of both parties or with the leave of the Court.
• Former de facto partners — the standard application period is generally two years after the end of the de facto relationship: section 44(5). Again, both parties may consent, or leave may be sought.

Leave is governed by section 44(4) for marriages and section 44(6) for de facto relationships, and each contains two distinct limbs:

• Hardship. The Court must be satisfied that hardship would be caused to the party — or to a child — if leave were not granted.
• The maintenance-specific limb. For a maintenance application, the Court may instead be satisfied that, at the end of the period within which the application could have been made without leave, the applicant's circumstances were such that they would have been unable to support themselves without an income-tested pension, allowance or benefit.

Leave is not granted as a matter of course, and a generally weak financial position does not satisfy either limb. Leave is also a separate question from the merits: obtaining it only allows the application to proceed. Anyone approaching or past a limit should get advice promptly rather than assume an application can still be brought.

Financial Agreements and Maintenance

A financial agreement can deal with maintenance, but not absolutely. For married parties, section 90E makes a maintenance provision void unless it specifies the party for whose maintenance provision is made and the amount, or the value of the property attributable to that maintenance. For de facto relationships, section 90UH imposes the same requirement on a Part VIIIAB financial agreement.

There is also a safeguard. Under section 90F (marriage) and section 90UI (de facto), a provision of an agreement does not exclude or limit the Court's power to make a maintenance order if, when the agreement came into effect, the party's circumstances — taking into account the terms and effect of the agreement — were such that they were unable to support themselves without an income-tested pension, allowance or benefit. An agreement is therefore a powerful tool, but it does not always extinguish maintenance. Our guide to binding financial agreements explains the wider requirements.

Evidence, Disclosure and Procedure

Maintenance is decided on financial evidence. What must actually be filed depends on the application, the applicable Rules and practice directions, any orders or registrar's directions, and the issues genuinely in dispute — there is no single universal document list, and an urgent application may need to be determined on more limited material because of the compressed timetable.

Material commonly relied on includes:

• a Financial Statement and a realistic household budget;
• recent payslips, and tax returns and notices of assessment for the periods in issue;
• bank, credit card and loan statements, and Centrelink or other benefit details where relevant;
• evidence of housing costs, health and medical expenses and child-related costs;
• medical or other evidence about health and capacity for work, and evidence of job-seeking or retraining where earning capacity is disputed;
• evidence of care responsibilities and of child support; and
• disclosure of assets, liabilities and financial resources, including superannuation and interests in trusts or companies.

Parties in family law proceedings owe a duty of full and frank disclosure of their financial circumstances, and the Court's pre-action procedure for financial cases generally expects parties to exchange disclosure and make a genuine attempt to resolve matters before filing. Those pre-action expectations are subject to exceptions — including urgency, family violence or risk to safety, fraud, and cases where the delay would cause undue prejudice. Agreement or negotiation is not a precondition to an urgent maintenance application. Non-disclosure can affect costs, credit and the orders ultimately made.

Tax, Enforcement and Practical Steps

Maintenance is not the same as child support in its treatment or its machinery. Tax and social security consequences depend on the form and purpose of the payment and on each party's circumstances, so both parties should obtain accounting advice before agreeing to a structure — particularly for lump sums or property transfers made for maintenance.

A maintenance order is enforceable. Unpaid periodic maintenance creates arrears that can be pursued through the Court's enforcement processes, which is one reason agreed arrangements are usually best recorded in consent orders rather than left informal.

Practical steps before applying usually include:

• preparing an evidence-based budget and gathering documents;
• exchanging financial disclosure with the other party;
• seeking agreement on interim support or specific outgoings, where it is safe and practicable to do so;
• considering whether consent orders or a financial agreement should deal with maintenance alongside property; and
• obtaining legal advice before issuing proceedings or signing an agreement — and immediately where the need is urgent.

How Parke Lawyers Can Help

Parke Lawyers acts for both potential applicants and potential payers — assessing need and capacity on the evidence, preparing budgets and Financial Statements, negotiating interim arrangements, drafting consent orders and financial agreements, and running urgent, interim and final maintenance applications. Maintenance rarely stands alone, so speak with our Family Law team early so it can be resolved alongside property and parenting issues.

Frequently Asked Questions

Sources and Further Reading

• Family Law Act 1975 (Cth) — current compilation, including sections 44, 72, 74, 75, 77, 77A, 80, 82, 83, 90E, 90F, 90SB, 90SD, 90SE, 90SF, 90SG, 90SH, 90SI, 90SJ, 90SS, 90UH and 90UI (opens in a new tab)
• Family Law Amendment Act 2024 (Cth) — Schedule 1, including the family violence considerations added to sections 75(2) and 90SF(3) and the application provision in item 68 (opens in a new tab)
• Federal Circuit and Family Court of Australia — Financial or property: Spousal maintenance (opens in a new tab)
• Federal Circuit and Family Court of Australia — Before you file: pre-action procedure for financial cases (opens in a new tab)
• Federal Circuit and Family Court of Australia — Duty of disclosure (opens in a new tab)
• Federal Circuit and Family Court of Australia — Family Law Practice Direction: Financial proceedings (opens in a new tab)