Maintenance
The Court may order the man to pay maintenance to his wife/former wife:
during the matrimonial proceedings.
when granting the decree of divorce or judicial separation; or
if after a decree declaring her presumed to be dead, she is found to be alive.
MAINTENANCE DURING MARRIAGE
Under the Married Women And Children's (Maintenance) Act 1950, a married woman is entitled to maintenance from her husband, for herself and their children to maintain themselves during the marriage without having to wait for the divorce hearing in the Court.
An illegitimate child is also entitled to claim maintenance from his/her father.
The wife is entitled to claim reasonable maintenance when:
the husband neglects to support her; or
he refuses to provide for the family.
Upon proof of either of the above situations, the Court may order the husband to make a monthly allowance as maintenance.
When making a maintenance order, the Court normally will take the following circumstances into consideration:
The husband's means;
The family's financial needs such as food and lodging expenses and the children's education;
The wife's physical or mental disability; and
The standard of living enjoyed by the family before the husband neglected or refused to provide maintenance.
PROCEDURE TO CLAIM FOR MAINTENANCE DURING MARRIAGE
Make out a complaint at a Magistrate's Court. In the complaint the wife is required to state how much the husband is earning, how many dependent children there are, how much maintenance they need and circumstances under which the husband has failed to maintain them. No fee is required for filing this complaint.
The Court will then order a notice to be sent to the husband and a day will be fixed for a Court hearing.
At the hearing, after taking all the evidence and when the Court is satisfied that the husband has failed to provide maintenance. It will make a maintenance order against the husband. The maintenance is payable from the date of neglect or refusal or from such date as is stated in the order. If either party is not satisfied with the order, he/she has a right to appeal.
Subsequently if there is a change in circumstances, e.g. if the husband earns more, or if the wife finds that the maintenance order is inadequate, the wife can return to the Court and ask for a variation order. Similarly, if the husband's circumstances change for example, if he loses his job, he can also ask for the order to be varied.
If the husband fails to make one or more payments, the wife can make a complaint to the Court and the Court will issue notice to show cause to the husband. If he fails to show cause he can be imprisoned for up to one (1) month for each month' maintenance he defaults.
To ensure that the husband does not default the wife can appeal to the Court for an attachment of earnings' order, which means that the husband's employer will be responsible for deducting the maintenance payment from the husband's salary so that it can be sent to the wife directly through the Court. It is advisable that this application be made at the same time the application for maintenance is filed.
If the husband is not a wage earner but has other sources of income then the Court can make an order that the maintenance sum be paid direct to the Court to be forwarded to the wife.
MAINTENANCE AFTER DIVORCE
The Court may order a husband to pay maintenance to his wife/former wife;
when granting the decree of divorce or judicial separation; or
if after a decree declaring her presumed to be dead, she is found to be alive.
The Court may also order the wife to pay maintenance to her husband/former husband if he is unable to earn a living due to mental or physical injury or ill-health and the Court is satisfied that having regard to her means, it is reasonable to order so.
In deciding the sum for maintenance, the Court shall consider the following facts:
the future and present income, property resources and earning capacity of both parties;
the financial needs of both parties;
the degree of responsibility which the Court apportions to each party for the breakdown of the marriage.
The Court may order that the person liable to pay maintenance to provide security to guarantee payment of such maintenance.
An agreement for payment of a capital sum (whether money or other property) in settlement of all future claims to maintenance is not effective, unless it has been approved by the Court and when so approved is a good defense to any claim for maintenance.
An order for maintenance shall expire or cease to have effect:
if the divorced spouse in whose favour the order was made remarries or lives in adultery with any other person;
where the maintenance was unsecured, on the death of either party; or
if the maintenance was secured, on the death of the spouse in whose favour the order was made.
The Court may at any time and from time to time vary or rescind any order for maintenance upon application by either party where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances as such substantial increase in the salary/income of either party, change in health conditions or remarriage of one party.
You may also make an agreement for maintenance. However, the Court may at any time and from time to time vary the terms of such an agreement where it is satisfied there has been material change in the circumstances notwithstanding any provision to the contrary in such agreement.
The right of any divorced person to receive maintenance from his or her former spouse under an agreement also ceases when he/she remarries or lives in adultery with any other person unless the agreement states otherwise.
Maintenance payable to any person under the Court order cannot be assigned, transferred and it is not liable to be attached requested or levied upon for any debt or claim whatsoever.
Arrears of maintenance can be recovered as a debt from the defaulter;
if the defaulter is dead and the arrears accrued due before his/her death can be claimed form his/her estate;
if the arrears accrued due before the death of the wife or husband entitled to it, then her/his personal representative can make a claim for it.
if the arrears accrued due before the making of a receiving order against the defaulter it should be provable in his or her bankruptcy.
The maximum period for which arrears can be claimed is three (3) years before the claim is filed.
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