Spousal Maintenance, Maintenance pending and after divorce
When spouses legally separate or divorce, the court may make an order for one of the spouses to pay a certain monthly amount of money as maintenance. A spouse in need can claim maintenance from the courts if he/she is able to establish that he/she does not have sufficient means to support himself/herself. The Claimant (person seeking spousal support) must also establish that the Defendant (the person from whom maintenance is sought) has the means to support him/her upon showing fair and reasonable prospects of success. Such maintenance can be claimed pending litigation or as post divorce maintenance.
Under the common law, spouses owe each other a reciprocal duty to support each other provided there is need and ability on the part of the claimant and the responsible person respectively. This duty arises where a spouse states that he/she needs assistance from the former spouse on the basis that such person cannot maintain himself/herself. In this instance the court considers whether the responsible person is capable of maintaining the claimant also inquiring into the age of the person seeking spousal support, whether the claimant has been working before marriage and is capable of working after divorce, whether the claimant has medical condition challenges or has a disability among other factors that the courts take into account in granting a spousal maintenance order.
NB: Maintenance at divorce is granted in exceptional circumstances and the need must be clearly spelt out. Capability to maintain a person must be supported by establishing the need of the person seeking to be maintained.
SONIA. R. FASHI
