LAWS OF EVE - Divorce vs child maintenance

 Question: One reader wrote that her husband has commenced divorce proceedings. She also wants to get divorced as soon as possible, because they have been separated for four years, and she wants to move on with her life. But they have a young son together and she wants confirmation of the father's maintenance contribution to his son. The difficulty is that she does not want an application for maintenance to delay the divorce proceedings.

Answer: When a divorce petition is filed in the Supreme Court, the petitioner is required to set out in an affidavit the arrangements in relation to any relevant children. A child is relevant as long as he/she is from the marriage and is under the age of 18, or under 21 and is still attending school. The judge who is considering the petition must certify that the arrangements in relation to that child are satisfactory before the divorce is granted.

The arrangements which concern the court include custody, schooling and maintenance. If any of those arrangements is deemed to be unsatisfactory, the judge may require that the parties be heard in connection with the issue.

Most persons who commence divorce proceedings attempt to achieve a clean break by the time the decree absolute is granted, in that they try to ensure that any property dispute or issues involving custody or maintenance are resolved whether by settlement or court order. In so doing, the emotional issues associated with the termination of the marriage are not allowed to resurface time and time again as each legal action is taken in turn; and expenses can be minimised.

With this objective in mind, if either party anticipates that maintenance will become an issue, it is advisable that an application be made for a maintenance order while the divorce proceedings are pending. As an alternative, the parties may enter into negotiations with a view to signing a Maintenance Settlement Agreement. In either case, they achieve some level of certainty as to their respective rights and obligations.

Against this background, the reader is correct in anticipating that the divorce proceedings may be delayed if she attempts to secure a maintenance order. However, she must decide whether the relative comfort which a maintenance order could provide may be worth the delay in concluding the divorce proceedings.

In this situation, she has a selfish desire to conclude divorce proceedings in the shortest possible time, but she is also concerned about ensuring that her son's right to receive support from his father is not compromised. It is a difficult balancing act, but she would be well advised to think on these things:

1. The child has a right to rely on financial support from his father.

2. The child has many years ahead of him and any sums paid by his father may be a future nest egg if there is no present need for the money.

3. The future is unpredictable, and it is uncertain whether one parent will remain in a position to manage to support a child on his or her own. The parent could lose his or her job.

4. If the need for financial support arises, a parent may find him/herself in a desperate position with an urgent need for a maintenance order; and the wheels of justice may not turn quickly enough to satisfy that need.

5. If the child's father dies, there may be a need to demonstrate the level of financial support which the child enjoyed while his father was alive. The existence of a maintenance order or other confirmed arrangement for maintenance may be helpful in proof of that support.

6. Despite any legitimate reasons which may exist for quickly concluding the divorce proceedings, the child's welfare is the paramount consideration.

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