Spousal Maintenance

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

What is Child Maintenance?

What is Child Maintenance?

Child Maintenance is financial support or money advanced to help in meeting a child’s day to day costs and needs which include food, shelter, clothing, schooling, health care among other needs.

Who is liable to pay child maintenance?

The law provides that both parents are legally obliged to maintain the child according to their means. Each parent should contribute towards the child’s welfare.

Who can claim child maintenance?

Maintenance is claimed by the parent having the care and custody of the child so that the other parent also contributes towards the upkeep of such child. A person other than the parent of the child, having the care and custody of the child can also claim child maintenance. Even where the parents of the child are not married, they are still liable at law to maintain the child each one according to his/her means.

Till when can child maintenance be claimed?

A maintenance claim lapses when a child turns 18 years of age or when a child becomes self-sustaining.  So it therefore follows that a maintenance claim can be extended beyond 18 years in instances when the child is still dependent on its parents ie still attending school  or if the child has a disability.

Once a child attains 18 years of age and is still dependant, he/she can claim maintenance in his/her capacity.

SONIA. R. FASHI

What is Bigamy?

What is bigamy?

It is whereby a person who is lawfully married under the law and without terminating such a marriage contracts another marriage with someone else. Bigamy is a criminal offence in terms of the Criminal Law (Codification and Reform) Act.

Bigamy takes the following forms:-

  • Put simply, if a person is married to someone under the civil marriage [Chapter 5:11], which is a monogamous marriage allowing a man to marry only one wife, and without legally dissolving such a marriage (divorce process) enters into another marriage with someone else, such person would have committed the crime of bigamy. This is expressed in section 104 of the Criminal Law (Codification and Reform) Act as follows, “Any person who, being a party to a monogamous marriage (allowing a person to marry one spouse) and, knowing that the marriage still subsists, intentionally purports to enter into another marriage, whether monogamous or polygamous, with a person other than his or her spouse by the first-mentioned marriage shall be guilty of bigamy.
  • This also occurs when a man who is married to two or more wives under registered customary marriage (this kind of marriage is potentially polygamous, meaning the husband is allowed to marry many wives customarily), however if such a man therefore goes on to marry someone else under a civil marriage [Chapter 5:11], popularly known as Chapter 37, a monogamous marriage which marriage allows him to have only one wife, then he would have committed bigamy. This is provided for in the Criminal Law Code section 104 which states that, “any person who being a party to an actually polygamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into a monogamous marriage with any person or whereby a person who being a party to a potentially polygamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into a monogamous marriage with any person other than his or her spouse by the potentially polygamous marriage shall be guilty of bigamy.
  • Lastly bigamy is also committed in situations where parties are married under an unregistered customary marriage and the husband then marries another wife under a civil marriage [Chapter 5:11], such husband would have committed the crime of bigamy. In the case that either of the spouses denies being party to the unregistered customary law union, it shall be the duty of the prosecution to prove that such a marriage or union existed and the party in denial was a party to that marriage. This is expressed in section 104 of the Criminal Law Code which provides that, “where a person is accused of bigamy in circumstances where he or she is it is alleged to have entered into a monogamous marriage while being a party to an unregistered customary law marriage with another person, and the accused denies that he or she is a party to the unregistered customary law marriage, the burden shall rest upon the prosecution to prove beyond a reasonable doubt that he or she is a party to the unregistered customary law marriage”.

SONIA. R.FASHI