AS our economic realties change, our concerns and obligations vary. For persons who have not yet managed to acquire any assets, the concern may be whether they are entitled to financial assistance from family members such as parents, children or a spouse. For persons at the other end of the spectrum, the concern may be whether they are obliged to share their wealth with others.

In this article we look at the three main issues which arise under the Maintenance Act, 2005 (“the act”) and the facts which we believe everyone should know about the provisions of the act.

1. The obligation of spouses

For the purposes of the act, the term “spouse” refers not only to persons in a marriage union but includes:

a) a single woman who for a period of net less than five years has cohabited with a single man as if she were in law his wife; and

b) a single man who for a period of at least five years has cohabited with a single woman as if he were in law her husband.

The provisions of the act do not apply to a union which consists of one married partner and a partner who is single. Under the act, persons who are widowed, divorced or have never been married are all considered to be single.

During marriage or cohabitation, each spouse has an obligation, so far as he/she is capable, to maintain the other spouse to the extent that such maintenance is necessary to meet the reasonable needs of the other spouse, where the other spouse cannot practicably meet the whole or any part of those needs.

Either spouse may apply to the court for an order for maintenance and in determining the amount and the duration of the support to be ordered, the court must consider, among other things:

a) the length of time of the marriage or cohabitation;

b) the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

c) the spouse’s needs, having regard to the accustomed standard of living during the marriage or cohabitation;

d) any housekeeping, child care or other domestic services performed by the spouse for the family; and

e) the effect of the spouse’s child care responsibilities on the spouse’s earnings and career development.

The obligation of each spouse does not cease on the termination of cohabitation and either spouse may apply to the court for a maintenance order within 12 months after such termination. A spouse will, however, not be liable to maintain the other spouse if the other spouse marries someone else or is cohabiting with someone else.

2. The obligation of parents and grandparents

Every parent has an obligation, to the extent that he/she is capable of doing so, to maintain his/her unmarried child who is a minor (that is, below the age of 18 years) or is in need or such maintenance due to physical or mental disability. It is important to note that a person is deemed to be a parent of a child if the person is a party to a marriage or cohabitation and accepts as one of the family a child of the other party to the marriage or cohabitation.

A maintenance order for the support of a child must divide the obligation according to the capacities of the parents to provide support. The Court will also consider the child’s aptitude for, and reasonable prospects of, obtaining an education and the child’s need for a stable environment.

If a parent fails to maintain his/her child owing to the parent’s death, physical or mental disability, each grandparent has an obligation, to the extent that the grandparent is capable, to maintain his/her unmarried grandchild who is a minor or is in need of maintenance due to mental or physical disability.

In addition, where the court is satisfied that a child in respect of whom a maintenance order has been made is or will be engaged in a course of education/training after age 18 and it is expedient for payments under a maintenance order to continue after the child has attained the age of 18 years, the court may direct that the maintenance order remains in effect until the child attains the age of 23.

3. The obligation of persons over the age of 18 years

Every person over the age of 18 years has an obligation, to the extent that he/she is capable of doing so, to maintain his/her parents who need such maintenance by reason of age, physical or mental infirmity or disability. The court in considering all the circumstances will have regard to whether, due to age or infirmity, the parent is unable to provide for himself or herself.

A person may also be obligated to maintain a grandparent if the grandparent’s children fail to do so owing to the death or disability of the grandparent’s children.

4. General factors to be considered by the court

In determining the amount and duration of support to be given to a dependant (that is, the person to whom another person has an obligation to provide support under the act), the court must consider all the circumstances of the case including:

a) the current assets and means of the parties and the assets which are likely to be attained in the future;

b) the capacity of the dependant to contribute to his/her own support;

c) the mental and physical health and age of the parties;

d) the desirability of either party staying at home to care for a child;

e) any contribution made by the dependant to the realisation of the other party’s career potential; and

f) the quality of the relationship between the parties.

You should take note not only of your rights under the act but also of your actual or potential obligations. Undoubtedly, the circumstances of each case will vary and as such, the obligations of each party will be different. It is therefore important to consult an attorney-at-law who will be able to advise you of your rights and obligations having regard to the unique facts of your case and the guidance which may be obtained from cases already determined by the court.

Shuana-Kaye Hanson is an associate in the litigation department at Myers, Fletcher & Gordon. She may be contacted at shuana.hanson@mafg.com.jm or via www.myersfletcher.com