Filing for spousal support, maintenance

Margarette MACAULAY

Monday, November 05, 2018

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DEAR MRS MACAULAY,
I am 36 years old and I am approaching the end of a 13-year relationship. We have lived together for no less than 12 years. The relationship gradually broke down due to infidelity and physical abuse on numerous occasions. We share a home through a 50/50 mortgage and also a four-year-old daughter. I also have a 14-year-old whom he assisted me with — she refers to him as dad.

While I wanted to separate from him for a while now, I never wanted to disrupt the children's life; but I would not be setting any example if I stayed in a relationship where I was being physically and verbally abused in front of my girls.

I want to know if I will be able to file for spousal support as due to the breakdown of the relationship he started withholding funds for the household and limiting his contribution to his child to spite me. Therefore, my savings have been eroded.

We work at the same company. His documented salary may be less than mine; however, he does a lot of significant contractual work, which far surpasses my income. How will I prove that he is able to afford child and spousal support? I am also in the process of seeking a restraining order due to the frequent altercations.

I look forward to your response.

You can add the application for maintenance of your children to your application for protection, occupation and ancillary orders as are appropriate to your full factual situation as an applicant pursuant to the provisions of the Domestic Violence Act. Under this Act, when you make an application for an order or orders of protection, you can also apply by adding claims for maintenance for both your children and also for you as his spouse.

The requirements which need to be met are for you, as a spouse, by your evidence and a supporting witness or two, to the fact that you and he have cohabited for 12 years as you have stated and that you are both single or divorced or widowed and you lived as if your were man and wife for the 12-year period. You certainly meet the statutory period of the status of spouse under the Domestic Violence Act, the Maintenance Act and the Property (Rights of Spouses) Act.

Then for the application for your children's maintenance, you have to prove that your four-year-old daughter is his and has been residing with you up to just before you filed your application and is continuing to do so. As you did not say otherwise, I take it that you are all still living in your family home. I also assume that his name and particulars appear on the child's birth records. In addition there is his acquiescence of his paternity by his continuing to provide for her.

For your older daughter, who you say he assisted you with and with whom he has a relationship, from your account this relationship has been for 13 years. So this relationship is really a father and child one. She falls within the definition of a child under the Domestic Violence Act and under the Matrimonial Causes Act, though you where not married and though he has no biological relation to her. The Act provides that a relevant child is also one who is the child of one party to a marriage who has been accepted as one of the family by the other party and there are many decided cases where a child in the position of your 14-year-old has benefited from continued support.

He was wrong to stop providing for her also because the Maintenance Act in clear terms states that a responsible party is, “a party to a marriage or cohabitation who accepts/accepted as one of the family a child of the other party to the marriage or cohabitation”. Thus, he is not entitled to suddenly cut her off as if there was nothing between them and as if that relationship came to an end when you and he broke up. Not so! It continues and his obligation to maintain her still continues. She is a minor and is entitled to be maintained by his contributions until she obtains her undergraduate degree or training certificate or attains the age of 23 years, whichever is sooner.

It is much better to make children's maintenance orders up to graduation or 23 years of age, with a provision of percentile increases every year or two years once they are studying or in training after their 18th birthday. The reason for this is that it saves court time, as then you do not have to apply and clog the court's calendar before child's 18th birthday occurs for an order to extend the order for maintenance beyond their 18th birthday as long as they are engaged in studies for a degree or are in training as aforesaid.

You ask how to prove his ability to provide for you and both children. You will do so through your affidavit and oral evidence in support as to how you know what he gets salary-wise and from his contracts and how much he used to provide for all of you per week or month or however, until he started cutting down after you made clear that your relationship was at an end. Surely this you can clearly state as you know what you used to receive from him and you clearly know about his contract earnings. If you have any documents/notes which relate to the funds he gave for the household, they can be exhibited to your affidavit or produced during your oral evidence.

I hope that I have clarified the position for you. I do not see any reason why you should not succeed in your applications. Please do not delay, as you should not have waited until your savings were eroded before applying for him to meet his financial obligations to you and the children.

You have not asked about your interest in the family home for which you have been bearing 50 per cent of the mortgage payments. This I opine is because you feel certain of your 50 per cent share in it.

All the best to you and the children and I hope that your ex-spouse does continue his relationship with the girls as they need such a continuity for their wholesome development.

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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