FAMILY LAW

UNIVERSITY OF TECHNOLOGY

FACULTY OF LAW

UNIT 5 –SPOUSAL MAINTENANCE

Relevant legislation: The Matrimonial Causes Act

The Maintenance Act

In some instances, spousal maintenance may be referred to as alimony, maintenance

pending suit or spousal support. Despite the terminology, the phrases all mean that a
sum is to be paid by one spouse to another for the financial benefit of that other spouse.
The payments may be due during the relationship or after it has come to an end.

The following are the circumstances in which spousal maintenance can arise:

1) Upon a Divorce/ a Petition for Dissolution of Marriage - Matrimonial Causes

Act (MCA) – S. 20 and s. 23(1) (Supreme Court)

a. (Note that in making an order under section 23(1) of the Matrimonial

Causes Act the Court must make the order in accordance with provisions
of the Maintenance Act.

b. Note that when making an order under section 20(1) of the Matrimonial
Causes Act the Court must have regard to section 14(4) of the
Maintenance Act.

2) Outside of Divorce Situations:

a. Where the parties are still married and an application is made under
section 10 of the Matrimonial Causes Act . At the time of making an
application under section 10 of the MCA, the party applying can also
apply for maintenance. (Still have to make the order in accordance with

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 the provisions of the Maintenance Act –See section 23(1) and section
23(2) of the MCA. (Supreme Court)

b. Parties are still married and have not commenced proceedings for
dissolution of marriage nor an application under section 10 of the
MCA. The application in these circumstances is made under the
Maintenance Act –section 4, 5 and 14(4) (Family Court)

c. Common law unions – during cohabitation, man and woman cohabiting

as man and wife for a period of 5 years.( Maintenance Act sections 4, 5,
14(4)(Family Court). Also after termination of cohabitation section 6 and
7 of the Manintenance Act.

d. Where Married persons or common law spouses make an application

under the Property Rights of Spouses Act in the Supreme Court , they
can also make an application for maintenance which would be governed
by the provisions of the Maintenance Act.( Supreme Court)

SPOUSAL MAINTENANCE DURING AND AFTER DIVORCE

PROCEEDINGS

SECTION 23(1) OF THE MATRIMONIALCAUSES ACT

Under Section 23 of the Matrimonial Causes Act as amended by section 28 of the

Maintenance Act, the Court may make such order for the custody, maintenance and
education of any relevant child or for the maintenance of a spouse in proceedings
for dissolution of marriage before or after the decree absolute is granted. These
proceedings for custody and maintenance may be commenced after the
presentation of the Petition for dissolution of marriage. The orders for
maintenance made by the Court in respect of the maintenance of any child or
spouse must be in accordance with the provisions of the Maintenance Act.(See
section 23 (2) below)

See section 22 of the Act however for when the orders are to take effect.

23. (1) The Court may make such order as it thinks just for the custody,
maintenance and education of any relevant child or for the maintenance of a
spouse.

(a) in any proceedings under section 10, or in any proceedings for dissolution

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 or nullity of marriage before, by or after the final decree;

(b) where such proceedings are dismissed after the beginning of the trial, either
forth with or within a reasonable period after the dismissal,
and in any case in which the Court has power by virtue of paragraph (a) to make
an order in respect of a child the Court may, if it thinks fit, direct that proper
proceedings be taken for placing the child under the protection of the Court.

(2) An order under subsection (1) for the maintenance and education of any
relevant child or for the maintenance of a spouse shall be in accordance
with the provisions of the Maintenance Act.

(3) Parties to a marriage or two persons in contemplation of their marriage to

each other may, for the purpose of facilitating the settlement of their affairs under
this section with respect to the issue of maintenance, make such maintenance
agreement as they think fit.

(4) For the purposes of this Part, a maintenance agreement means an

agreement that-

(a) makes provision in respect of the support rights and obligations of the parties
with respect to each other or any child that either party has an obligation to
maintain under the Maintenance Act; and

(b) includes provisions in respect of-

(i) financial matters;

(ii) the right to direct the education and moral training of their children; or

(iii) any other matter in the settlement of the affairs of the spouses, including an
agreement that varies an earlier maintenance agreement.

(5) The provisions of sections 24(3) to (11), 24(13) and 25 of the

Maintenance Act shall have effect, with the necessary modifications, to
maintenance agreements made under this section."

ORDERS FOR FINANCIAL PROVISION FOR SPOUSE DURING

DIVORCE PROCEEDINGS (gross or annual sum) – Section 20 of the
MCA

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Under section 20 of the Matrimonial Causes Act, in dissolution of Marriages
proceedings the court on the application of a dependent spouse may make an order for
one spouse referred to in the Act as the contributing spouse to pay to the dependent
spouse either a gross sum of money or such annual sum not exceeding the life of the
dependent spouse having regard to the means of the dependent spouse, the ability of
the contributing spouse and to all the circumstances of the case. Again the Court must
have regard to the provisions of the Maintenance Act section 14(4) in making the
orders. See section 22 as to when order is to take effect.

Section 20 of the Matrimonial Causes Act provides

"(1) On any decree for dissolution of marriage, the Court may, if it thinks fit-

(a) order a spouse (hereinafter in this section referred to as the contributing

spouse) to secure to the other spouse (hereinafter in this section referred to as
the dependant spouse), to the satisfaction of the Court-

(i) such gross sum of money; or

(ii) such annual sum of money for any term not exceeding the life of the
dependant spouse,

as having regard to the means of the dependant spouse, the ability of the
contributing spouse and to all the circumstances of the case, the Court thinks
reasonable;

(b) for the purposes of paragraph (a), refer the matter to any attorney-at-law to settle and
approve a proper instrument to be executed by all necessary parties, and may order the
costs of such instrument to be paid by the parties, or such of them as the Court thinks fit;
and

(c) where the matter is referred under paragraph (b), suspend the pronouncement of the
decree until the instrument has been duly executed,

and on any petition for dissolution of marriage the Court shall have power to make
interim orders for such payments of money to the dependant spouse as the Court thinks
reasonable.” ;

(2) In any such case as aforesaid the Court may, if it thinks fit, by order, either in
addition to or instead of an order under subsection (1), direct the contributing
spouse to pay to the dependant spouse during their joint lives such monthly or weekly
sum for the maintenance and support of the dependant as the Court may think
reasonable.

(3) If, after any such order has been made, the Court is satisfied that the means of either

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 or both of the parties have changed, the Court may, if it thinks fit, discharge or modify
the order, or temporarily suspend the order as to the whole or any part of the money
ordered to be paid, and subsequently revive it wholly or in part as the Court thinks fit.

(4) An order under subsection (1)(a) or (2) shall have regard to the matters
specified in section 14(4) of the Maintenance Act.";

Case Law on Spousal Maintenance Pending Divorce Proceedings

See Barr –Meijerink v.Meijerink JM 2002 SC 67 (Carilaw Citation) –application by the wife
under section 20 of the Matrimonial Causes Act prior to the amendments by section 28 of the
Maintenance Act. Here the Court took into account the following factors in determining that it
would not be just to make an order for maintenance:

1) The fact that the wife had an adulterous relationship,

2) the husband funds purchased items for delivery to the wife’s boyfriend’s mother,

3) the numerous telephone calls from the wife’s boyfriend,

4) the duration of the marriage(of short duration),

5) The fact that the union produced no children,

6) and that the wife's career has not been adversely affected by her marriage,

See also the reasoning of the Court on the issue of whether a child was a “relevant
child” in that case.

Binns v.Binns JM 1999 SC 39

Facts: Application by wife, 71 years old, for maintenance. They were married in February 1987 but
separated. The wife is a retired teacher, the husband a bus operator. The means of wife and of husband
examined. The wife's liabilities far exceed her income. She must be given the opportunity to continue to
enjoy a comfortable life style and will be awarded maintenance. The husband should provide her with
accommodation; and certain specified items relating to her monthly expenses ought reasonably to be paid
by her husband, which should be discounted by the amount of which she is now in receipt by way of her
personal income.

Held: The husband/respondent to pay the wife/applicant $15,237.00 monthly for her maintenance i.e.
$23,000.00 less $7,762.00 commencing November 1, 1999. Costs to the applicant.

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Surdeen v. Surdeen JM 2007 SC 42 (Carilaw citation) –applications for spousal maintenance can
only be made under the Matrimonial Causes Act in the Supreme Court pending divorce proceedings.

Darby v. Darby JM 2007 SC 59 (Carilaw citation)Maintenance – Spousal – 52 year marriage –

Financial capacity of the parties – Applicant rented accommodation – Applicant's income was $50,000
and he had acquired significant debts – Many assets had been liquidated – Applicant maintained
respondent for more than 20 years – Husband had ceased paying maintenance three years prior to the
application – Wife suffered no decline in standard of living – Wife's income was almost five times that of
the husband – Application for maintenance was denied

Kerr v.Kerr JM 2006 SC 68 (Carilaw Citation)

Husband and wife - Divorce - Maintenance - Imbalance in circumstances - Respondent wife applying for
maintenance following divorce - Wife employed part-time as seamstress and husband a senior
telecommunications engineer and executive - Matrimonial Causes Act, s. 20 - Court to consider means,
ability and circumstances of parties - Petitioner ordered to make monthly maintenance payments and to
discharge mortgage payments.

Jarrett v. Jarrett JM 2000 CA 32 (Carilaw Citation) –divorce does not of itself bring an
end to maintenance agreement.

Maintenance of spouse - Pre-divorce agreement - Whether brought to an end by divorce - Prior to the
divorce the appellant had consented to paying maintenance to the respondent for a specified period - The
appellant ceased payments after the granting of the decree absolute - Judge ruled that the order for
maintenance subsisted after Decree Absolute - On appeal - Appeal dismissed - A divorce does not ipso
facto bring to an end an order for maintenance .

Valentine v. Valentine (1992) JLR 35 cited by Brook J in Kerr v. Kerr

Maragh v. Maragh JM 2009 SC 15 ( Carilaw Citation) Case after the recent

amendments to the Matrimonial Causes Act by the Maintenance Act. See the judgment
of Brooks J.
Maintenance for wife – Factors to be taken into account in the award of maintenance – Maintenance Act, 2005,
section 5(2) and 14(4).

Prince Campbell v. Campbell JM 2008 SC 13 (Carilaw Citation)

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THE APPLICATIONS FOR SPOUSAL MAINTENANCE UNDER THE MAINTENANCE
ACT

The Maintenance Act of 2005 is the main legislation which deals with Spousal
Maintenance. Applications are made under this Act for maintenance by persons who
are in a common law union or after the termination of the common law union and by
persons who are still married and have not applied for a divorce or an order under
section 10 of the Matrimonial Causes Act(MCA). Note however that in determining
maintenance applications under section 10, 20 and 23 of the MCA, the Court must have
regard to the provisions of the Maintenance Act.

COURTS IN WHICH APPLICATION FOR MAINTENANCE UNDER THE

MAINTENANCE ACT CAN BE MADE

Under section 3 of the Maintenance Act, an application for maintenance under the Act
can only be made in the Resident Magistrate Court or the Family Court. It can only be
made directly under the Maintenance Act in the Supreme Court where the application is
coupled with an Application under the Property Rights of Spouses Act for division of
property.

Application for maintenance order.

3.-(1) Subject to subsection (2), a person may apply to the Resident Magistrate's Court in
the parish in which the person resides, or, as the case may be, to the Family Court for a
maintenance order in accordance with the provisions of this Act.

(2) In any case where an application is made for the division of property under the
Property (Rights of Spouses) Act, the Court hearing the proceedings under the Property
(Rights of Spouses) Act may make a maintenance order in accordance with the
provisions of this Act.

Who Can Apply for Spousal Maintenance Under the Maintenance Act

Note under the Maintenance Act, spouse includes :

(a) a single woman who, for a period of not less than five years, has cohabited with a
single man as if she were in law his wife; and

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(b) a single man who, for a period of not less than five years, has cohabited with a
single woman as if he were in law her husband.

The definition of spouse is inclusive not exhaustive and as such includes

persons in a marriage union also.

NOTE:

Under the maintenance Act a spouse (common law and married) can apply during the
subsistence of the relationship for maintenance under section 4 and 5 of the Act.
Persons in common law unions can apply after the cohabitation has terminated under
section 6 and 7 of the Act

THE OBLIGATION TO MAINTAIN A SPOUSE

See section 4 and 5 of the Act

Obligation of spouses to maintain each other.

4. Each spouse has an obligation, so far as he or 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 having regard
to-

(a) the circumstances specified in section 14 (4); and

(b) any other circumstances which, in the opinion of the Court, the justice of the case requires to be taken
into account.

5. Maintenance order re spouse.

5.-(1) A maintenance order for the support of a spouse shall-

(a) contain such provisions as will ensure that the economic burden of child support is shared equitably;

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(b) make such provision as the Court considers fair with a view to assisting the spouse to become able to
contribute to that spouse's own support.

(2) In determining the amount and duration of support to be given to a spouse under a maintenance
order, the Court shall have regard to the following matters in addition to the matters specified in section
14(4)-

(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 effect of the responsibilities assumed during the marriage or cohabitation on the spouse's earning
capacity;

(d) the spouse's needs, having regard to the accustomed standard of living during the marriage or
cohabitation;

(e) whether the spouse has undertaken the care of a child of eighteen years of age or over who is unable,
by reason of illness, disability or other cause, to care for himself;

(f) any housekeeping, child care or other domestic service performed by the spouse for the family, as if
the spouse were devoting the time spent in performing that service in remunerative employment and were
contributing the earnings to the family's support;

(g) the effect of the spouse's child care responsibilities on the spouse's earnings and career development;

(h) the terms of any order made or proposed to be made under the Property (Rights of Spouses) Act in
relation to the property of the parties;

(i) the eligibility of either spouse for a pension, allowance or benefit under any rule, enactment,
superannuation fund or scheme, and the rate of that pension, allowance or benefit.

Section 14(4) of the Maintenance Act provides:

(4) In determining the amount and duration of support, the Court shall consider all the circumstances of
the parties including the matters specified in sections 5(2), 9(2) or 10(2), as the case may require, and-

(a) the respondent's and dependant's assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant's capacity to contribute to the dependant's own support;

(d) the capacity of the respondent to provide support;

(e) the mental and physical health and age of the dependant and the respondent and the capacity of each

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of them for appropriate gainful employment;

(f) the measures available for the dependant to become able to provide for the dependant's own support
and the length of time and cost involved to enable the dependant to take those measures;

(g) any legal obligation of the respondent or the dependant to provide support for another person;

(h) the desirability of the dependant or respondent staying at home to care for a child;

(i) any contribution made by the dependant to the realization of the respondent's career potential;

(j) any other legal right of the dependant to support other than out of public funds;

(k) the extent to which the payment of maintenance to the dependant would increase the dependant's
earning capacity by enabling the dependant to undertake 'a course of education or training or to establish
himself or herself in a business or otherwise to obtain an adequate income;

(l) the quality of the relationship between the dependant and the respondent;

(m) any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken
into account.

MAINTENANCE AFTER THE TERMINATION OF A COHABITING

RELATIONSHIP( COMMON LAW UNION)

Section 6 and 7 of the Act deals with maintenance payments after the cohabiting
(common law union) has terminated. A Spouse in a common law union must apply for
maintenance within 12 months after the termination of the cohabitation. Note under
section 7 that there is no obligation to maintain a common law spouse who has
married or started cohabiting with another person after the termination of the common
law relationship.

6. Maintenance after termination of cohabitation.

6.-(1) In the case of cohabiting parties and subject to the provisions of this section, after the
termination of cohabitation each spouse has an obligation, so far as he or 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 having regard to-

(a) the circumstances specified in section 14(4); and

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 (b) any other circumstances which, in the opinion of the Court, the justice of the case requires
to be taken into account.

(2) An application for maintenance upon the termination of cohabitation may be made within
twelve months after such termination, and the Court may make a maintenance order in
accordance with Part VI in respect of the application.

(3) Where a Court acts under subsection (2)-

(a) the provisions of section 5 shall apply with the necessary modifications;

(b) the Court shall, as far as practicable, make such orders as will finally determine the
financial relationship of the parties and avoid further proceedings between them.

7. Effect of entering into new marriage or cohabitation.

7.-(1) A person shall not be liable to maintain another person under section 6 if the other
person marries someone else or is cohabiting with someone else.

(2) In any case where subsection (1) applies, any order made under section 6 shall cease
to have effect.

Note that section 6 and 7 does not apply to persons in a marriage union. Note however the fact that a
party (in a marriage union) who is applying for maintenance has committed adultery, has remarried, or is
cohabiting with someone else is a relevant fact for the court to consider when granting a maintenance
order. See Barr –Meijerink v.Meijerink.

See section 15 of the Act for the powers of the Court regarding Maintenance Orders

See section 16 (1) (b) and (2) for the duration of Maintenance Orders

THE ENFORCEMENT OF MAINTENANCE ORDERS

See the Provisions of the Act which Deal with Enforcement of Maintenance Orders:

1) Distress Provisions – section 20

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 2) Committal Provisions -Section 21 and 22

3) Attachment to Income or Pension Provisions – section 17

THE VARIATION AND CANCELLATION OF MAINTENANCE ORDERS

See the provisions of the Act for the power of the Court to Vary or Cancel Maintenance Orders under
section 18 of the Act.

MAINTENANCE AGREEMENTS - Pre-marriage and Pre- cohabitation

for common law unions.

24. Agreements in respect of maintenance.

24. -(1) Subject to section 25 spouses or two persons in contemplation of their marriage
to each other or of cohabiting may, for the purpose of facilitating the settlement of their
support rights and obligations, make such maintenance agreement as they think fit.

(2) For the purposes of this Part, a maintenance agreement means an agreement that-

(a) makes provision in respect of the support rights and obligations of the parties with
respect to each other or any child that either party has an obligation to maintain under
section 8; and

(b) includes provisions in respect of-

(i) financial matters;

(ii) the right to direct the education and moral training of their children; or

(iii) any other matter in the settlement of the support obligations of the parties, including
an agreement that varies an earlier maintenance agreement.

(3) Each party to a maintenance agreement shall obtain independent legal advice before
signing the agreement and the legal adviser shall certify that the implications of the
agreement have been explained to the person obtaining the advice.

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(4) Every maintenance agreement shall be in writing signed by both parties whose
signatures shall-

(a) if signed in Jamaica, be witnessed by a Justice of the Peace or an Attorney-at-Law;

(b) if signed in a country or State other than Jamaica, be witnessed by-

(i) a person having authority by the law of such country or State to administer an oath in
that country or State; or

(ii) a Jamaican or British High Commissioner or Ambassador, as the case maybe, or a

Jamaican or British or British Envoy, Minister, Charge d'Affaires, Secretary of Embassy
or Legation or any Jamaican or British Consul-General or Consul or Vice-Consul or
Acting Consul or Consul Agent exercising his functions in that country or State.

(5) Subject to subsection (7), a maintenance agreement shall be unenforceable in any

case where-

(a) there is non-compliance with subsection (3) or (4); or

(b) the Court is satisfied that it would be unjust to give effect to the agreement.

(6) An agreement made pursuant to subsection (1) by a minor and every instrument
executed by such minor for the purpose of giving effect to any such agreement shall be
valid and effective as if the minor were of full age.

(7) Notwithstanding subsection (5) (a), the Court shall have jurisdiction to enquire into
any agreement made under subsection (1) and may, in any proceedings under this Act
or on an application made for the purpose, declare that the agreement shall have effect
in whole or in part or for any particular purpose if it is satisfied that the non-compliance
mentioned in that subsection has not materially prejudiced the interests of a party to the
agreement.

(8) In deciding under subsection (5)(b) whether it would be unjust to give effect to an
agreement, the Court shall have regard to-

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(a) the provisions of the agreement;

(b) the time that has elapsed since the agreement was made;

(c) whether, in light of the circumstances existing at the time the agreement was made,
the agreement is unfair or unreasonable;

(d) whether any changes in circumstances since the agreement was made (whether or
not such changes were contemplated by the parties) render the agreement unfair or
unreasonable;

(e) any other matter which it considers relevant to any proceedings.

(9) Nothing in this section shall limit or affect the capacity of spouses to agree to acquire
or hold any property jointly or in common (whether or not with any other person) and
whether legally or beneficially.

(10) A maintenance agreement ceases to be in force upon the death of a party to the
agreement, unless the agreement otherwise provides.

(11) Where in relation to a maintenance agreement the Court is satisfied that the
arrangements in respect of a child that either party has an obligation to maintain under
section 8 are-

(a) not proper; or

(b) no longer adequate in the circumstances,

the Court may make such order under Part VI as it thinks necessary to secure the
proper support of the child.

(12) It is hereby declared that a maintenance agreement made by persons who cohabit
shall not be void as against public policy.

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(13) In subsection (6) "minor" means a person who is sixteen years of age and over but
below the age of eighteen years.

25. Agreement to defeat creditors.

25. Any maintenance agreement that is intended to defeat any creditor of either party to
the agreement shall be void.

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