The Maintenance Act explained

Dear Mrs Macaulay,

When the Maintenance Act was amended in 2005, it made provision for each spouse to be obligated to maintain the other. Men can now apply for maintenance from their wives, and a woman is no longer entitled to be maintained by her husband whether she is capable of maintaining herself or not. Is this indeed now a part of the Maintenance Act in Jamaica?

Your first sentence is in simple terms correct, but there is more to the actual provision and other sections of the Act which must be considered by a judge in considering the issue of maintenance of a spouse. There is also the fact that the Maintenance Act provides for maintenance applications within the jurisdiction of Resident Magistrate’s Courts and Family Courts.

It also effected amendments to the Matrimonial Causes Act for maintenance applications filed in the Supreme Court, or as part of divorce proceedings in this court. One of these amendments was that which deleted the word ‘wife’ and substituted the word ‘spouse’ therefor. However, in the body of the section, it provides that one spouse would be referred to as the ‘contributing spouse’ and the other the ‘dependent spouse’. You can deduce which spouse would provide maintenance for the other. It is also interesting to note that the change from ‘wife’ to ‘spouse’ does not go further to say that the definition of ‘spouse’ in the Maintenance Act applies to the Matrimonial Causes Act.

Anyway, your question related specifically to the Maintenance Act and provision for spouses, so having made clear that this Act also effected amendments to the maintenance provisions in the Matrimonial Causes Act, I shall restrict myself. The provisions in the other Act need to be dealt with separately in order for them to be made clear.

Section 2 of the Act, which is the definition section and which defines ‘cohabit’, ‘single woman’, ‘single man’ and ‘spouse’, makes it clear that the Act also relates to legally married persons and persons in common-law unions.

Section 3 makes clear that the Resident Magistrate’s and Family Courts are the relevant courts to which a party may apply for maintenance orders under the Act. It also enables these courts, when dealing with an application under the Property (Rights of Spouses) Act, to make an order for maintenance in accordance with the provisions of the Maintenance Act.

Then the main provision, “Obligation of spouses during marriage or cohabitation”, is dealt with in section 4 of the Act. This section provides that each spouse has an obligation, as far as he or she is capable, to maintain the other spouse when such maintenance is necessary to meet the reasonable needs of the other spouse when this spouse cannot in practical terms or in reality provide for him/herself wholly or in part.

It also provides that the judge, in considering the evidence on the issue, must take into account the entire circumstances of the spouses; the assets and means which they have and are likely to have in the future, including pensions and the size(s) of the amount; the capacity of the spouse in need to contribute to their own support; the capacity of the other spouse to provide support; the mental and physical health of each to obtain appropriate gainful employment; and if any means are available for the dependant spouse to become able to provide for their own support, what this is, how long it would take, and the costs. It also takes into account the need for the best interests of the dependant or respondent to stay at home to care for a child or children; the contribution made by the dependant to the realisation of the respondent’s career potential; the quality of the relationship between them; and any fact or circumstance which in the opinion of the judge would be just to take into account in deciding the application.

There are several other matters and circumstances which a judge, in considering whether to order maintenance of a spouse and the period and amount of such support, must consider pursuant to the Act. I do not wish to bore the readers by listing any more. The thing to remember is that the Act seeks to have the courts act fairly between the parties, and yet not leave the needful and other party in want and destitute. In fact, there should be a full and detailed examination of both parties’ financial and other relevant circumstances. The standard of living the parties had is also a relevant matter for consideration.

The Act enables the courts to make interim and final orders — orders for a certain time or for the rest of the natural life of the dependant spouse. Orders for periodic payments or for payment of a lump sum or for it to be paid and held in trust can also be made. Orders of attachment may also be made by the courts when the respondent has failed to abide by the maintenance orders and he or she has a pension or other income which can be attached, so that the monies are made payable directly from the payer of the pension or income to the dependant spouse.

Orders of maintenance can also be later varied on applications made to the courts if and when circumstances have changed for either of the parties. Any party who is dissatisfied with a maintenance order or order of attachment or collection orders as made can appeal to the Court of Appeal pursuant to its rules.

Spouses and those contemplating marriage can enter into maintenance agreements which must meet the requirements specified in the Act. Any term or act taken by either party to defeat the other’s right to be maintained will make the agreement void and the court can, if appropriate, set aside such arrangements.

I hope that this has not been too technical, but the provisions relating to maintenance are quite extensive and not as simple as you, the writer, stated them.

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.