Fri | May 26, 2017

Perfect time to obtain maintain orders

Published:Monday | March 23, 2015 | 3:00 AM

While there are many opportunities for spouses to obtain maintain orders, sometimes the maintenance application is made while the couple is still married or cohabiting, but more often it is sought during divorce proceedings or after those proceedings have ended.

The timing of the application is important for the fact that it could well determine whether the application results in a final or interim order.

A recent decision in the Supreme Court in the case of Sam vs Sam [2015] JMMD: FD 1 examined many of the issues involved in spousal support applications made during the course of divorce proceedings, and I will set out some of the principles below:-

1 Section 20 of the Matrimonial Causes Act (MCA) gives the Court the power to make maintenance orders on any decree for dissolution of marriage.

2 Under section 22 of the MCA, an application under section 20 may be commenced at any time after the filing of the petition for dissolution of marriage.

3 Under the proviso to section 22, only an interim order may be made prior to the pronouncement of the divorce decree.

4 In making an order under section 20 of the MCA, the court must have regard to the provisions of section 14 of the Maintenance Act.

5 The first question to be answered on any spousal support application is whether the applicant or dependent spouse can practically meet the whole or any part of her reasonable needs.

6 Lord Scarman's statement in the case of Minton v Minton [1979] AC 593, is often cited for the view that, "There are two principles which inform the modern legislation. One is the public interest that the spouses, to the extent that their means permit, should provide for themselves and their children. But the other - of equal importance - is the principle of 'the clean break'. The law now encourages spouses to avoid bitterness after family break-down and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down."

7 Four things must be satisfied before the court will make a spousal support order:

It must be demonstrated by evidence, first, that the spouse who is tasked with the responsibility of spousal maintenance has the capability to fulfil that role. Second, the claimed maintenance must be demonstrably necessary. Third, the needs being considered must meet the bar of reasonableness. Finally, the evidence must show that it is impractical for the spouse to wholly or partially satisfy those needs.

8 In appropriate cases, a dependent spouse might not be saddled with any part of the responsibility for child maintenance; or at least for such period until that parent can become self-sustaining. In this case, that period was three years.

The applicant was awarded a lump sum payment of J$5,000,000, periodic payments of J$150,000 per month for spousal maintenance for a period of three years, J$165,000 per month for the maintenance of both children of the family, J$150,000 for accommodation. The contributing spouse was also ordered to pay full school fees of both children and their full medical, dental, and optical expenses reasonably incurred for the space of three years.

The outcome of this case serves to underscore the fact that each maintenance application will be determined on the basis of its own facts, after all the circumstances of the case have been considered.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send comments and questions to lawsofeve@gmail.com or lifestyle@gleanerjm.com.