Mon | Sep 24, 2018

Laws of Eve | No automatic right to spousal maintenance

Published:Monday | May 7, 2018 | 12:00 AM

One of the most common myths in family law is the notion that a divorced woman is automatically entitled to receive some form of payment (such as alimony, maintenance or spousal support) from her former husband. This idea is perhaps most frequently touted in cases where the marriage had been of long duration, but it is simply not true.

The fact is that, with the amendment of the Maintenance Act in 2005, the idea that a marriage is a partnership of equals came closer to being realised. In other words, the old patriarchal law provided that a man was obligated to maintain his wife whether she could maintain herself or not; and this meant that men had no right to seek spousal support. The new law, which attempted to balance the interests of men and women, provides for spouses to seek maintenance from each other. However, there is no automatic right for either spouse to receive a payment.

Section 4 of the Maintenance Act sets the stage for applications for spousal maintenance, and other sections of the act provides guidance as to the relevant factors that a court must consider:

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 circumstance which the justice of the case requires to be taken into account.

The right to spousal maintenance came squarely into focus in the case of Gentles v Gentles [2018] JMSC Civ. 36. After reviewing the relevant sections of the act, the learned judge endorsed the following explanation of the law by Justice Brown in Robb v Robb Claim No. D01148/2005 (judgment delivered on December 11, 2009):

The obligation to maintain the other spouse is, in the first instance, latent. It is activated by the inability of the other spouse to maintain himself or herself. So, the court has to make, as a condition precedent to a maintenance order, a threshold finding that the dependant spouse cannot practicably meet the whole or part of her reasonable needs.

In the Gentles case, after a 12-year marriage came to an end, the former wife made an application for maintenance. The claim failed because the court accepted that the claimant had sufficient income to meet her reasonable needs. After reviewing the evidence, the judge made the following findings:

- The claimant is already currently able to contribute to her monthly expenses;

- There is no evidence that the claimant has had to redirect funds to meet her basic needs and/or those of her household; and

- This demonstrates the claimant's capacity to be financially independent of the defendant at this present time as she has been able to continue to meet her financial obligations even in the absence of the defendant's financial support.

When making spousal maintenance applications, applicants (usually females) should be mindful of the fact that not only can their applications fail, they might even be ordered to pay maintenance to their former spouses.

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