Spouse Maintenance

One spouse is liable to maintain the other, only to the extent that they are reasonably able to do so and if the other party is unable to support himself or herself adequately because of:

• Their child of the marriage is under the age of 18 years
• Their age
• Their incapacity for employment
• Any other adequate reason.

When deciding whether a spouse is entitled to maintenance and how much is deemed reasonable, the court will consider many relevant matters, including both parties' living situations and financial circumstances.

Broadly, the applicant must first demonstrate a need for maintenance, and then the capacity for the other party to pay is considered. Maintenance ceases on remarriage or death, or if the payer dies. Maintenance orders can be varied when either the payer's or the recipient's circumstances change.

When looking at the applicant's financial circumstances, the court disregards pension payments. Government policy is to require maintenance payments in place of pension payments wherever possible.

There is a strong preference when settling financial cases to obtain finality for the parties. In practice this means that Courts (and couples) usually obtain a lump sum payment rather than an ongoing weekly or monthly spousal maintenance payment. A property settlement will quite commonly be higher in favour of a spouse who would otherwise have a claim for spousal maintenance. In exchange that party gives up any future claim to spousal maintenance.