Under Section 72(1) of the Family Law Act it is possible in some cases for one of the parties to a marriage to be liable to maintain the other post separation, to the extent that they have the capacity to meet the needs of the other.
In Eliades (1981) FLC 91-022, Nygh J answered this question when he said:
“Is the Applicant in a position to finance him or herself from his or her own resources? whether by reason of earning capacity, capital or other sources of income which have accrued independently. Is the Applicant in a position to look after herself?”
The right to maintenance also exists for those in a de facto or same sex relationship should they too, be able to establish a need and their spouse or ex-spouse has the capacity to meet that need. Unlike where parties are married, in de facto matters rights to spousal maintenance only arise where the relationship is of the requisite length (equal to or greater than 2 years) or where there is a child of the relationship or a substantial contribution was made to relationship assets.
Regardless of whether a party is married de facto or a same sex partner, there is no principle that the pre-separation standard of living must automatically be awarded. The Court is often empowered with a wide discretion in the circumstances of awarding maintenance. There are time limits on a parties’ rights to seek spousal maintenance and de facto maintenance claims.