Understanding Child and Spousal Maintenance

Understanding Child and Spousal Maintenance

When a marriage faces breakdown, financial responsibilities often remain concerning children and spouses. Maintenance, also sometimes referred to as alimony, is a critical legal consideration aimed at ensuring financial stability after separation or divorce.

1. What is Maintenance?

Maintenance generally refers to the financial support provided to a spouse, former spouse, or child, typically in the form of monetary payments.

In practice, the court may order maintenance to be paid either as monthly sums or as a lump sum payment.

An important legal characteristic of maintenance payable under a court order is that it is typically inalienable. This means that the payments are generally not assignable, transferable, or liable to be seized or levied upon for any debt or claim.

2. Who Has the Duty to Maintain?

The duty to maintain is set out for three main groups: parents, spouses/former spouses, and, in certain circumstances, step-parents.

Duty of Parents to Maintain Children

A parent has a fundamental duty to maintain or contribute to the maintenance of their children. This duty applies regardless of whether the child is legitimate or illegitimate, or if the child is in the parent’s custody or the custody of another person.

Duty of Spouses and Former Spouses

Husband to Wife/Former Wife: The court can order a man to pay maintenance to his wife or former wife if he has neglected or refused to provide reasonable maintenance for her.

Wife to Incapacitated Husband/Former Husband: Conversely, a woman may be ordered to pay maintenance to her incapacitated husband or incapacitated former husband if she has neglected or refused to provide reasonable maintenance for him. An “incapacitated husband” is legally defined as a man who, during the marriage, is or becomes unable to earn a livelihood due to a physical or mental disability or illness, and who continues to be unable to maintain himself.

Duty of Non-Parents (Step-Parents)

A person who accepts a child (who is not their biological child) as a member of their family assumes a duty to maintain that child. This duty applies only so far as the biological father or mother of the child fails to do so.

To determine if a non-parent has accepted the child, the court uses an objective viewpoint to assess whether parental responsibilities were assumed. Strong evidence of acceptance can include the following:

• • • Marrying the child’s biological parent.
    • Changing the child’s surname to that of the step-parent.
    • Encouraging the child to refer to the step-parent using parental terms.

The non-parent’s duty ceases if or when the child is taken away by the biological father or mother. This typically happens when the interim judgment for divorce is granted.

3. When Will Maintenance Be Ordered?

Maintenance orders can be made when a parent neglects or refuses to provide reasonable maintenance for a child who is unable to maintain himself or herself. For spouses and former spouses, maintenance can be ordered during matrimonial proceedings, when granting or subsequent to the grant of a judgment of divorce, judicial separation, or nullity of marriage.

4. How Does the Court Determine the Amount of Maintenance?

The court determines the amount of maintenance by having regard to all the circumstances of the case.

Factors for Spousal Maintenance

When determining the amount of spousal maintenance, the court’s goal is financial preservation: to maintain the former spouse at a standard that is, to a reasonable extent, commensurate with the standard of living he/she had enjoyed during the marriage. However, it is important to note that maintenance is not intended to create life-long dependency on the former spouse, and parties are encouraged to strive towards self-sufficiency after the divorce.

The court must consider several factors when determining the amount of spousal maintenance, including:

• • • The income, earning capacity, property, and financial resources that each party has or is likely to have in the foreseeable future.
    • The financial needs, obligations, and responsibilities of each party.
    • The standard of living the family enjoyed before the breakdown of the marriage.
    • The age of each party and the duration of the marriage.
    • Any physical or mental disability affecting either party.
    • The contributions made by each party to the welfare of the family, including contributions made by looking after the home or caring for the family.

Child maintenance must involve providing for accommodation, clothing, food, and education. These provisions must be reasonable when considering the parent’s means and station in life.

The court is required to consider the following factors in relation to the child:

• • • The financial needs of the child.
    • The income, earning capacity (if any), property, and other financial resources of the parent responsible for maintenance.
    • Any physical or mental disability of the child.
    • The standard of living enjoyed by the child before the parent neglected or refused to provide reasonable maintenance for them.
    • The manner in which the child was being, and in which the parties to the marriage expected the child to be, educated or trained.

Duration of Child Maintenance

Maintenance orders for children generally cease when the child reaches 21 years of age. However, the court can extend the duration or make an order for a child who has already attained 21 if the maintenance is necessary due to:

• • • A mental or physical disability of the child.
    • The child serving full-time national service.
    • The child receiving instruction at an educational establishment or undergoing vocational training.
    • Other special circumstances that justify the order.

Varying Existing Orders for Maintenance

A subsisting maintenance order may be varied or rescinded by the court upon the application of either party. Variation is allowed if the order was based on misrepresentation or mistake of fact, or if there has been any material change in the circumstances. The court typically looks only at changes that have occurred after the previous order was made.

5. Guidelines on Nominal Maintenance

Nominal maintenance is a small, symbolic maintenance order sought by a former wife primarily to preserve her legal right to apply for a future variation of maintenance orders if her circumstances deteriorate. For example, a former wife may seek nominal monthly maintenance of $1.00.

Recent guidance by the courts provided three broad principles regarding when nominal maintenance may be ordered:

1. Nominal maintenance is not awarded as a matter of course.
2. The wife cannot merely assert that her situation may change in the future.
3. The underlying purpose of maintenance for former wives remains financial preservation (or maintaining a reasonable standard of living previously enjoyed).

Thus, the case for granting nominal maintenance is considered extremely weak if the marriage was short, the wife is financially capable of working, or if the wife has been awarded substantial matrimonial assets (or interim maintenance). A refusal to grant any maintenance (nominal or otherwise) renders the issue settled, preventing future claims for maintenance.

In essence, maintenance serves to ensure that no family member is left financially vulnerable after a marriage ends. It reflects the principle that responsibilities within a family, particularly toward children and dependent spouses, do not simply dissolve with divorce. Ultimately, the law strives to strike a fair balance between compassion and practicality, protecting those in need while recognising each party’s capacity for self-sufficiency.

If you wish to understand more about child or spousal maintenance, our lawyers at Christopher Bridges Law Corporation can advise and assist you in navigating your rights and obligations under the law.