LAWS OF EVE: Spousal Maintenance 101
What is spousal maintenance?
In some instances, spousal maintenance may be referred to as alimony, maintenance pending suit or spousal support. Despite the nomenclature, the phrases all mean that a sum is to be paid by one spouse to another for the benefit of that other spouse. The payments may be due during the relationship or after it has come to an end, and this largely accounts for the different descriptions which are given to the payments.
Who is a spouse?
Spouse always means a married man or woman, but it also has an extended definition which includes widow, widower, divorcé, divorcée as well as a single woman and a single man who had lived together (or cohabited) with a single man or single woman for a period of five years as if they were, in law, husband and wife. The law therefore recognises common law unions.
Is there a duty to provide spousal support?
The Maintenance Act 2005 states that "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". Therefore, both male and female spouses are entitled to receive and provide maintenance.
When is spousal maintenance payable?
It may be payable during the course of the marriage or cohabitation or after the cessation of cohabitation or the termination of the marriage, and may be the subject of a maintenance order by the court.
When can an application for maintenance be made?
Under the Maintenance Act, either spouse may make an application to the Resident Magistrate's or Family Court at anytime during the course of the marriage or cohabitation, or within 12 months after cohabitation has ceased or the marriage has come to an end. Under the Matrimonial Causes Act, the application may be made to the Supreme Court during the course of divorce proceedings or within a reasonable period of time after those proceedings have been dismissed. (If proceedings have been commenced in the Supreme Court for division of matrimonial property, the Court may also make a maintenance order.)
What is a maintenance order?
It is any order made by the court for
one person to maintain the other. The order will attempt to ensure that
the economic burden of child support is shared equitably and assist the
spouse to become able to contribute to that spouse's own support.
When does a maintenance order cease?
The
spousal maintenance order will continue for the period stated in the
order. However, if the spouse who is being maintained marries or is
cohabiting with someone else, the maintenance order will cease. Although
not stated in any of the acts referred to above, it would seem that the
order would cease upon the death of the spouse who is being maintained.
(Different issues arise when the spouse who has been ordered to pay
maintenance dies.)
In
next week's article, we will examine the factors which the court takes
into account when considering whether to make a maintenance order, and
the reasonable amount and terms of payment.
Sherry Ann McGregor is a Partner and Mediator in the firm of Nunes
Scholefield DeLeon & Co. Please send your comments and questions to
lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.