Spousal maintenance is financial support paid by one spouse to the other after the breakdown of a marriage. It is designed to assist a financially dependent spouse who is unable to adequately support themselves.
For de facto relationships, a similar arrangement—known as de facto maintenance—provides financial support to a former de facto partner in circumstances where they are unable to meet their living expenses independently.
How Does Spousal Maintenance Differ from Child Support?
Spousal maintenance is separate from child support. It is paid in addition to any child support obligations and any property settlement that the financially dependent spouse may receive. Often, spousal maintenance is necessary in the interim while property division is still being determined.
Is Spousal Maintenance Automatically Granted?
No, spousal maintenance is not automatically granted following the breakdown of a marriage or de facto relationship. The party seeking maintenance must demonstrate that:
- They cannot adequately support themselves, and
- The other party has the financial capacity to provide support.
Each case is assessed individually, and the court applies specific criteria when determining whether maintenance should be paid.
How Does the Court Decide on Spousal Maintenance?
The court has broad discretion when deciding:
- The amount of maintenance
- The type of financial support (e.g., lump sum or ongoing payments)
- The duration of maintenance
Decisions are made based on factors such as financial needs, earning capacity, contributions during the relationship, and future obligations.
How Long Does Spousal Maintenance Last?
Spousal maintenance is typically temporary, providing financial assistance until the recipient can regain independence. However, in cases where a party is unable to achieve financial self-sufficiency—due to factors like health, age, or caregiving responsibilities—the court may order longer-term support.
How Can I Apply for Spousal Maintenance?
An application for spousal maintenance can be submitted to the Family Court of Australia or the Federal Circuit Court. Applicants must provide:
- Financial statements detailing income, expenses, assets, and liabilities
- Supporting documentation such as medical reports or caregiving responsibilities
- Evidence of financial need and the other party’s capacity to pay
Legal guidance is recommended to ensure proper representation and advocacy.
Generally, you cannot relocate more than 50km from your child’s other parent without their consent or approval from the Family Court.
What Happens if One Parent Wants to Relocate?
After separation, a parent may wish to move with their children to another town, state, or even country. However, the other parent may object, arguing that the relocation will make it difficult for them to maintain an ongoing relationship with the children.
If parents cannot reach an agreement, the matter may be referred to the Family Court, which will assess the circumstances and decide whether the relocation should be permitted.
How Does the Court Decide on Relocation?
The Family Court considers several factors when determining whether relocation is in the child’s best interests, including:
- The impact of the move on the child’s relationship with both parents.
- The reason for relocation (e.g., employment, family support).
- Each parent’s proposed arrangements for maintaining the child’s connection with the other parent.
- The child’s welfare, emotional stability, and overall best interests.
The court aims to balance parental rights with the child’s need for meaningful relationships with both parents.
What Should I Do if I Want to Relocate?
If you are considering relocating with your children, you should seek legal advice before making any decisions. You may need to:
- Discuss relocation with the other parent and attempt to reach an agreement.
- Engage in mediation to resolve disputes amicably.
- File an application with the Family Court if the other parent does not consent.
Yes, superannuation is regarded as property under the Family Law Act and is divided between separating couples, just like other assets.
How is Superannuation Different from Other Property?
Unlike assets such as a house or cash savings, superannuation cannot be sold, mortgaged, or accessed immediately for personal benefit. Instead, it is considered a financial resource—a future asset intended for retirement.
Can Superannuation Be a Significant Asset?
Absolutely. Superannuation entitlements can be substantial, sometimes reaching hundreds of thousands or even millions of dollars. These funds are typically accumulated in Industry Super Funds or Self-Managed Superannuation Funds (SMSFs).
How Is Superannuation Divided in a Separation?
During property settlement, superannuation may be split between parties according to financial contributions, future needs, and court decisions. The division process depends on individual circumstances and must comply with family law regulations.
Financial disclosure, known as the Duty of Disclosure, requires both parties in financial cases—including property settlements, spousal maintenance, and child support—to provide complete and transparent information about their financial circumstances.
What Must Be Disclosed?
Parties must disclose all relevant financial information, including:
- Paper documents and electronically stored records (e.g., tax returns, bank statements, asset holdings).
- Financial details that may not be known to the other party.
- Any new financial documents or changes in circumstances as they arise.
When Does the Duty of Disclosure Begin and End?
This duty applies before legal proceedings commence, starting with the pre-action procedure, and continues until the case is finalised.
Do I Need to Update My Financial Disclosure?
Yes. If your financial situation changes—such as acquiring assets, incurring new debts, or receiving additional income—you must provide updated financial information throughout the legal process.
Why is Financial Disclosure Important?
Full and accurate disclosure ensures fairness in financial settlements. Failing to disclose information may lead to penalties or complications in the legal process.
Divorce does not automatically cancel your will. However, it can significantly impact its validity and how your assets are distributed.
What Happens to My Former Spouse in My Will After Divorce?
In most cases, any provisions in your will that benefit your former spouse—such as gifts, executor appointments, or trustee roles—are revoked after divorce. This means your ex-partner will no longer inherit under your will unless specified otherwise.
Will My Entire Will Become Invalid?
No, your will remains valid, but any references to your ex-spouse are treated as if they no longer exist. Other provisions remain unchanged unless you update your will.
Should I Update My Will After Divorce?
Yes. It is strongly recommended to update your will after divorce to:
- Remove or amend provisions related to your former spouse.
- Reassign executors, trustees, or beneficiaries as needed.
- Ensure your assets are distributed according to your current wishes.
What Happens If I Don’t Update My Will After Divorce?
If your will is not updated, assets meant for your former spouse may be redirected to default beneficiaries (such as children or other named heirs). This might not reflect your intentions, leading to potential legal disputes.
Does Separation Affect My Will in the Same Way as Divorce?
No, separation does not revoke any part of your will. If you are separated but not legally divorced, your spouse may still inherit under your existing will unless you update it.
Inheritance can be considered part of the property pool in a divorce, but it is not automatically split between spouses. Whether it is divided depends on several factors.
What Factors Determine Whether Inheritance Is Shared?
The Family Court assesses:
- When the inheritance was received (before, during, or after separation).
- How the inheritance was used (kept separate or contributed to shared assets).
- The financial needs of both parties, including future economic circumstances.
- Whether the other spouse contributed to maintaining or improving the inherited asset.
Can I Protect My Inheritance From Division?
There are steps to safeguard your inheritance, such as:
- Keeping it separate from joint assets.
- Using legal agreements, like binding financial agreements (prenups or postnups).
- Providing clear documentation showing the inheritance was not intended for shared use.
What Happens If the Inheritance Was Used for Shared Expenses?
If the inheritance was used for joint purchases—such as a family home, investments, or living expenses—it is more likely to be considered part of the divisible asset pool.
Should I Get Legal Advice Regarding My Inheritance?
Yes. Each case is unique, and inheritance laws can be complex. Seeking legal guidance ensures you understand your rights and options for protecting your assets.
No, child support payments are not tax-deductible for the paying parent. In Australia, child support is considered a personal expense, meaning it cannot be claimed as a tax deduction.
Do I Have to Pay Tax on Child Support I Receive?
No, child support payments are not considered taxable income for the receiving parent. This means you do not need to report child support payments as income in your tax return.
Why Isn’t Child Support Tax Deductible?
The Australian Taxation Office (ATO) classifies child support as a private financial arrangement rather than a deductible expense. The purpose of child support is to contribute to a child’s living expenses, not to provide tax benefits.
Does Child Support Impact Other Government Payments?
Yes, receiving child support may affect certain Centrelink benefits, such as Family Tax Benefit (FTB). The amount of child support received is considered when calculating entitlements.
Failing to meet child support obligations can lead to serious legal and financial consequences. The Child Support Agency (CSA) or other relevant authorities may take action to enforce payments.
What Actions Can Authorities Take Against Non-Payment?
If child support is not paid, enforcement measures may include:
- Debt Recovery: The government can recover unpaid child support through tax refunds, income garnishment, or legal orders.
- Wage Deductions: Child support may be deducted directly from wages or benefits.
- Asset Seizure: In extreme cases, assets such as property or bank accounts may be frozen or seized.
- Legal Penalties: Courts can issue fines or impose penalties for failing to comply with child support obligations.
- Travel Restrictions: In some cases, non-payment may result in restrictions on overseas travel, including passport suspension.
- Credit Impact: Unpaid child support can negatively affect credit ratings.
Can Child Support Debts Be Reduced or Modified?
If you are experiencing financial difficulties, it’s important to seek legal advice and apply for a reassessment rather than ignoring payments. Modifications may be possible if circumstances change (e.g., loss of income or health issues).
How Can I Avoid Child Support Issues?
To prevent enforcement actions:
- Make timely payments and keep records.
- Communicate with the Child Support Agency if financial difficulties arise.
- Seek legal guidance for child support modifications or disputes.
An executor is the person appointed in a will to manage the estate of the deceased. Their role is to ensure that the deceased’s assets are distributed according to the instructions in the will and that all legal and financial responsibilities are handled properly.
What Are the Duties of an Executor?
An executor’s responsibilities may include:
- Locating and managing the deceased’s assets.
- Paying outstanding debts, taxes, and liabilities.
- Distributing inheritance to beneficiaries.
- Arranging funeral expenses and legal documents.
- Applying for probate (if required).
- Handling disputes related to the estate.
Who Can Be an Executor?
An executor is typically a trusted individual, such as a family member, friend, or legal professional. They must be willing and able to manage the responsibilities of handling an estate.
Does an Executor Get Paid?
Executors are not automatically paid, but they may claim reasonable expenses incurred while managing the estate. In some cases, an executor may receive a fee if stated in the will or approved by the court.
Can an Executor Decline the Role?
Yes, an executor can renounce their role if they feel unable to fulfill the duties. This must be done before they begin managing the estate, and an alternative executor will be appointed.
