Wife battling cancer, hubby denying access to kids

Dear Mrs Macaulay,

I am taking my husband to court to pay maintenance to me [as his wife in need], and to grant me access to my kids. I am a stage 3 breast cancer patient. Any advice you can give would be appreciated.

I am deeply saddened by your situation of being a breast cancer patient who is also being denied access to your children by your husband,  who is also failing in his statutory, legal and moral duty to provide you with maintenance and to ensure that you maintain your parental relationship with your children especially during what is an extremely stressful, worrying and needful time in your life.

The law is very clear about each spouse’s obligation during the duration of their marriage or cohabitation to maintain the other to the extent that such maintenance is necessary to meet their reasonable needs, when the other spouse cannot provide the whole or any part of their expenses for their necessities. The provisions which establish the obligation to maintain one’s spouse are found in the Maintenance Act of 2005, and each spouse is bound to obey these statutory provisions.

The Act also spells out the circumstances which the court to which a spouse applied for an order for (in this instance) her maintenance and any and all consequential orders, must take into account in determining that the applicant spouse’s circumstances places her within the frame to be entitled to be maintained, and being satisfied that the respondent spouse failed in his obligation to maintain his wife and that he is able to do so.  The judge of that court would then order the respondent spouse to contribute to or provide the whole maintenance necessary for the applicant spouse’s daily needs to sustain her life. Based on the evidence proffered in the case, the court would apply the legal provisions in the Act, and would if necessary, also follow principles decided in previous applications in a court of higher jurisdiction wherein the statutory provisions were interpreted and applied. Your application would be decided by the Family Court judge using the provisions in the Act and the decided binding precedents of a higher court, which apply to your particular case.

You are also legally entitled to access to your children and to have a relationship with them, on an equal basis as your husband.  This is a right which the children have and they cannot be denied that right by one spouse in relation to the other.  Only an order by a court of law can curtail or deprive any parent of access to their children, after the judge of the court correctly decides the matter, based on all the facts and circumstances of the case and having applied the correct legal standards and principles to such facts and circumstances to arrive at the decision which is in the best interests of the children.  Your interests would also be fully considered before the court’s decision is made and announced.

I have not related all the legal contents of the provisions in the Maintenance Act as I do not wish to burden you with too much legal jargon; suffice it to say, that you have a legal right to be maintained by your husband and to see and have access with your children.  You therefore have the right to make an application (I suggest) to the Family Court for your parish for orders for your husband to maintain you.  You should try to have worked out as close as you can to the full total which you need and take with you any and all documents which support any part of what you are claiming in your application. The court has the power to examine your husband’s financial position and ought not to accept his mere statement that he cannot afford to maintain you.

Remember that a clerk of the court will assist you with the preparation of your application and the affidavit in support to which must be exhibited documents, invoices, cheques, receipts or any other record which would assist you to give the judge as much evidence as you can to enable them to fully understand your needs and your case.  Your application has to state how much you are applying for, and your affidavit would explain why you are applying for such a sum per week, month or such other period as being best.

You should take a medical report to the clerk of the Family Court which details your serious health situation, or you can name a witness to the clerk, who she/he can send a subpoena to give evidence of your health situation to the court.  The services of the clerk who assists you to prepare and to file and ensure the service of your application and affidavit in support are all free.

You must make sure that your application is prepared both for your maintenance and for access to your children.  Be clear when you wish to have such access, whether it is weekly or fortnightly, and from what time to what time.

Please do not delay to go to the Family Court and make your application as soon as you can.  Go in and let the clerk assist you. Do not let any further time be wasted, and remember that it is not in the best interests of the children that they are not seeing you and spending time with you.  Please do all you can to help them by pushing for your access to them, for their mental, emotional and physical well-being, and for the maintenance which you need from your husband to be able to fight the cancer and to hopefully recover.

All the very best. I shall remember you in my prayers.

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.