Ex husband owes maintenance

All Woman

Ex husband owes maintenance

Margarette MACAULAY

Monday, November 23, 2020

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Dear Mrs Macaulay,

My ex husband had been working until the start of the lockdown, when they were told to stay home. They were only called in when they were needed at work. Since the lockdown he hasn't paid a cent for the children. Now he is waiting for his pension payout because he resigned and got another job. Are his children not entitled to a cut on this pension money?

He hasn't paid maintenance from January, and he has only sent half of the agreed amount for September and October 2020.

What if he doesn't pay the money that he owes me from January? What do I do then?

It has been a very, very difficult year with one of the kids in university.

Your letter is a bit confusing as you say that your ex, since the lockdown, has not paid a cent for the children. But then you say that he has not paid maintenance from January, and that he has only sent half the money for September and October. Firstly, the lockdown was not in place in January, and he has paid half the agreed amount for September and October. In these matters, your facts have to be correct and clear! You have not been so in your letter.

It would seem that he was experiencing financial difficulties when he stopped paying his agreed sum for the children. You have not stated whether what you referred to as “his agreed amount” was embodied in a court order for maintenance, or whether it was agreed between you both as his contribution. If you and he agreed to this amount and he has been breaking his agreement with you, you will have to go to the Family Court and make an application for the maintenance due for each minor child. You can particularise your claim for each, using the sums agreed with him. Such orders will remain in force until they are 18. You would also have to remember to apply to the court during each of the children's 17th years to extend their maintenance if they plan to attend university or a skills training institution. The child you say is in university must already be over 18, so you will not be able to make a maintenance claim for this child for the first time in any court as he/she is already an adult in law. You can, however, make a civil claim in the Parish Court for the sum owed for this child based on the agreement you have with your ex. In fact, you can decide to treat it as a sum due on his breach of contract, and make a claim in the Civil Parish Court for the total sum due as a straight debt, but this will not take care of future payments from him.

If “the agreed amount” was arrived at in the Family Court during the hearing of maintenance applications, then the course of action is simple. You should go back to the court for him to be summoned to return to answer for his default. In this circumstance, you must be clear about the exact date he defaulted and the total owed by him, and you can ask the court to order that his pension be attached for the total sum due as his arrears, and perhaps for an order that he pays his maintenance contributions into the court instead of to you. This makes it easier to prove arrears if he ever defaults again.

As you did not say whether you have maintenance orders or not, but only used the nebulous term of “the agreed amount”, I have dealt with your enquiries in the two ways above — the first being if it is by way of a private agreement you have with him, and the second where you already have orders from the court.

Finally, you asked if your children are entitled to a cut of their father's pension money. The clear answer is that they are not, unless a court orders that the maintenance arrears he accrued be deducted from it and paid over to you for them.

I seriously implore you to go to the Family Court in your parish and explain the situation, and ask the clerk to assist you to get the arrears due from January or whenever, and also to ensure that you get the requisite orders so you and your children do not find yourselves in the same position again in the future.

All the best to you and your children.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.


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