With Funmilayo Olagunju Esq
Recently, there is a visible reluctance to contract statutory marriage for the fear of losing personal asset and wealth after divorce. While maintenance order is a possible relief that could be sought during a matrimonial proceeding, it is not a magical wand that automatically transfers wealth from one spouse to the other. Maintenance order is not a means to ‘punish’ a man or unjustly move his wealth to the estranged wife.
The 5th definition of maintenance according to Black’s dictionary is most relevant to this article. Maintenance is defined as “financial support given by one person to another, usually paid as a result or a legal separation or divorce; especially alimony. Maintenance may end after a specified time or upon the death, cohabitation, or remarriage of the receiving party.”
Section 70 of the Matrimonial Causes Act provides for the power of Court in a maintenance order. Here are some notable facts about the order for maintenance:
The maintenance order could be made in favour of a party to the marriage (which is technically not gender-based) or in favour of the child(ren) of the marriage.
The court will consider the means, earning capacity and conduct of the parties while making an order for maintenance. While maintenance is not basically a punitive measure, the conduct of the parties is relevant while seeking maintenance order.
It is important for the party seeking maintenance order to bring cogent proof about the earning power of the Respondent.
Ordinarily, when an offspring from a marriage has attained the age of 21, such a person is technically no longer a child and maintenance order for children of a marriage may not extend to him/her. In exceptional cases, the court may consider an application for maintenance order for a child of a marriage who has attained the age of 21, if the court is the opinion that there is a special circumstance to make such order for the benefit of that child.
Maintenance order could be paid periodically to the party to whom it was awarded by the court or it could be paid to the court officials or any public official who will remit the fund to the person in whose favour the order was made.
The court may discharge an order for maintenance if the party in whose favour it was made marries again or there is any just cause to do so. Sec 73(j)(i) Matrimonial Causes Act.
The court is also empowered to review (upward or downward) a maintenance order or suspend its payment for a specific time or indefinitely. The court is also empowered to revive the payment of a suspended order of maintenance.
Maintenance order like every order of Court is meant to be obeyed. If there is any incapacitation on the path of the obligator (party meant to pay), such incapacitation should be promptly brought to the notice of the court in an appropriate manner. Maintenance order is an enforceable debt and contempt proceeding can be initiated against a person who refuses to obey court order.
“When you are on the way to court with your adversary, settle your differences quickly. Otherwise, your accuser may hand you over to the judge, who will hand you over to an officer, and you will be thrown into prison.”
Matthew 5:25 (NLT)