Wed | Sep 20, 2017

Delay in Making Maintenance Application. How long is too long?

Published:Monday | November 2, 2015 | 11:00 AM

Applications for maintenance are usually contentious and difficult to resolve. Typically, they are made while divorce proceedings are pending or shortly after separation from a common-law union.

Under section 6 (2) of the Maintenance Act, a common-law spouse has a period of 12 months after the termination of cohabitation within which to make an application for maintenance. For divorced couples, there is greater flexibility. Under section 23 of the Matrimonial Causes Act, spousal and child maintenance applications may be made during divorce proceedings or within a reasonable time after they have been concluded.

However, because the section states that the application is to be made within a "reasonable time" after the conclusion of the proceedings, it is important to determine what time period would be reasonable.

In an interesting judgement from the UK Supreme Court (Wyatt v Vince [2015] UKSC 14), a woman made an application for financial relief 18 years after the grant of the decree absolute. The parties were married in 1981, had one son together, and the husband accepted the wife's son from a previous union as a child of the marriage. After separating in 1984, the wife carried the burden of providing for the children on her own because the husband had no means to provide any substantial financial support.

The decree absolute was granted in 1992 and the court could not ascertain whether any order had been made regarding financial provision because the file could not be found. (So, files do not only go missing in Jamaican courts!) The court proceeded on the premise that the wife's application had not been dismissed.

The couple's lives changed significantly after the divorce. In 2001, their son went to live with his father and went to work in his business.

 

FINANCIALPROVISION

 

In 2011, the wife made a successful application for financial provision despite the husband's application to strike it out. The Court of Appeal set aside that order and struck out the wife's application. She then appealed to the Supreme Court, which unanimously allowed the appeal, and ordered that the application proceed in the High Court. Among the reasons for judgement was the finding that the Court's rules made no provision for summary judgement in the family rules, and the fact that the wife delayed making her application did not mean that the application was not legally recognisable.

Despite the difficulties the wife is likely to face in securing an order in her favour, it was felt that her superior contribution towards the family's welfare could justify a financial order for at least a modest amount.

In reaching that conclusion, the Court made reference to Pearce v Pearce (1980) 1 FLR. In that case, the parties separated in 1969 and the wife raised the three children single-handedly for nine years. Until 1977, the husband was an undischarged bankrupt. However, in 1978, he came into an inheritance from his father. The wife then made an application for a lump sum payment and was awarded £12,000.

In justifying the award, the court said that the justice of the case required that award, despite the lapse of time, since the husband had "never paid a penny piece for maintenance of his ex-wife or his three children", while the wife struggled to make ends meet. The fact that the husband's capital came from an inheritance did not exempt it.

Under Jamaican law, the word "reasonable" is used to describe how long after separation a maintenance application could be made. However, if Wyatt and Pearce are examples of what a court may be prepared to do if the circumstances warrant it, a late application may still be worthwhile.