Maintenance of the Wife and Children

Here are some things you should know about maintenance of the wife and child:

What is maintenance?

• Maintenance is the financial support provided to pay for the reasonable costs of accommodation, clothing, food and living expenses required by a wife or child
• Every has a statutory (legal) duty to provide maintenance for his wife and every parent has the same duty to provide maintenance for the parent’s child
• A party can formally apply to the Court to obtain a Maintenance Order which will formally order the husband or parent to provide maintenance to his wife or children
  • The wife has a right to claim maintenance from the husband regardless of her misconduct
  • However, a wife’s misconduct may affect the amount of maintenance that she is awarded by the Court
  • The duty to provide maintenance for the wife and child exists regardless of whether Divorce proceedings are ongoing (i.e. the husband / father has a duty to maintain his wife and children even when the marriage has not broken down and when the marriage has not been ended)
• Maintenance can be paid by giving a monthly allowance or making a lump sum payment

How much maintenance will the Wife receive?

• The amount of maintenance will be decided by the Court after considering the following factors:
  • Financial needs of the wife
  • Income, earning capacity, property and other financial resources of both the wife and husband
  • Any physical or mental disability of the wife
  • Age of each party and the duration of the marriage
  • Contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family
  • Standar of living enjoyed by the wife before the husband neglected or refused to provide reasonable maintenance for the wife
  • Any value / benefit which one party would stand to lose as a result of the Divorce (e.g. pension)
  • Conduct of the parties
• The husband’s duty of maintain the former wife will generally end upon his death or when the wife remarries (whichever is earlier)
• The Court generally aims to place the parties in the financial position in which they would have been if the marriage had not broken down
  • The general aim of requiring a former husband to maintain his former wife is to even out any financial inequalities between the spouses, taking into account any economic prejudice suffered by the former wife during the marriage (e.g. financial loss when the wife sacrificed her career or lost out in her earning capacity in order to look after the family)

How much maintenance will the Children receive?

• Parents have a duty to maintain or contribute to the maintenance of their children (e.g. reasonable cost of accommodation, clothing, food and education
  • This duty exists regardless of:
    • Whom the children are in the custody of
    • Whether the children are legitimate or illegitimate
  • A parent must maintain a stepchild if the child was accepted as a member of the parent’s family and where the child’s biological parents do not provide full maintenance
  • Maintenance can be paid by giving a monthly allowance or making a lump sum payment
  • The amount of maintenance will be decided by the Court after considering the following factors:
    • Financial needs of the child
    • Income, earning capacity, property and other financial resources of both the child and parents
      • Ratio of total earning income of both parents (i.e. the financially stronger parent generally pays more)
    • Any physical or mental disability of the child
    • Age of each parent and the duration of the marriage
    • Contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family
    • Standard of living enjoyed by the wife or child before the parent neglected or refused to provide reasonable maintenance for the child
    • How the child was already being educated and how the parents expected him to continue to be educated
    • Conduct of the parties
  • The Court can revise any agreement made between the parents relating to the child’s maintenance

What happens if maintenance is not paid?

• The wife can formally apply to the Court to obtain a Maintenance Order which will formally order the husband to provide maintenance to her and their children
• Once a Court has ordered the husband to provide maintenance, he will be liable to be prosecuted for an offence punishable by imprisonment if he fails to comply with the Court’s order to make maintenance payments
  • The husband will still be required to pay maintenance even if he has already been prosecuted and punished for the non­compliance of the Court order
• The Court may also order that the maintenance payments be obtained from the husband in the following ways:
  • Garnishee Order: a bank or third party will be ordered to pay monies from the husband’s account or funds to pay for the maintenance
  • Attachment of Earnings Order: the husband’s employer will be ordered to retain a portion of his salary to pay for the maintenance

Can the maintenance order be revised?

• Any party can apply to the Court to have the Maintenance Order rescinded (i.e. withdrawn / cancelled) or varied (i.e. revised / amended) if the party can prove that there has been a material change in the circumstances of that party
  • For example, the wife may apply for the maintenance amount to be increased if the material change in her circumstances are such that she now requires a greater amount of maintenance (e.g. unable to work due to a medical condition, having to pay for the treatment a child’s medical condition)
  • Likewise, the husband may apply for the maintenance amount to be decreased if the material change in his circumstances are such that he is now unable to pay the same amount of maintenance (e.g. retrenchment, unemployment, unable to work due to a medical condition, having to pay for the treatment of a medical condition)
  • The Court may also consider any change in the general cost of living
• The effect of a rescission of the Maintenance Order is that the husband / father will subsequently not be required continue to pay maintenance under the terms of the order
• The effect of a variation of the Maintenance Order is that the husband / father will subsequently be required to pay a lower or greater amount of maintenance

Child maintenance

The decision of the Judge on how much maintenance to give to your child depends on a number of factors. The Judge will consider the basic financial needs of your child such as his education, food and lodging expenses. Any physical or mental disability of your child will also affect the amount of maintenance.

Period for custody or maintenance

Usually an order for custody or maintenance will automatically expire or become ineffective after your child reaches his 21st birthday or in the matter of the child’s maintenance, when your child is financially independent. Sometimes the Judge can order maintenance for a specific period, even after your child reaches his 21st birthday, such as until the completion of his tertiary education.

However, if your child suffers from any physical or mental disability, the custody and/or the care and control/access or maintenance order may continue until he recovers from that disability, even after he turns 21.

Varying an Order of custody or maintenance

You may make an application in Court to vary or cancel the Order of custody or maintenance in the interest of your child. You may do so if there is a material or important change in the circumstances since the Order was made. Examples are: there is a substantial increase in the salary of either parent, change in health conditions or the remarriage of one parent.

Agreement for custody or maintenance

You can make an agreement for custody and/or the care and control/access or maintenance. However, the Judge may vary the agreement if it is in the interest for the welfare of your child to do so.

Maintenance for Wife or Ex­wife

When can you apply for maintenance

A wife/ex­wife may apply for maintenance during marriage, separation or the course of divorce proceedings. You need not have to file for a divorce before you apply for maintenance for yourself. You may do so if your husband neglects or refuses to provide you with reasonable maintenance.

If you are undergoing a divorce and do not apply for maintenance during divorce proceedings or your application for maintenance has been turned down by the Court at the conclusion of divorce proceedings, you may not subsequently apply for maintenance.

Maintenance

This depends on a number of factors. The Judge will consider the financial standing and earning capacity of both you and your husband/ex­husband. He will also consider the standard of living enjoyed by both of you during the marriage. Ages of the parties and the duration of the marriage are also factors considered. The Judge will try to place you in the same standard of living, as you would have enjoyed, if the marriage had not broken down.

Period of maintenance

Usually the period of maintenance will last until the wife or the husband dies or the wife remarries. Varying the Order of maintenance

Either you or your husband/ex­husband may apply to the Court to vary or cancel the Order for maintenance at any time, if the circumstances under which the original order was given have changed.

Arrears of maintenance

If your husband/ex­husband has refused or neglected to pay you the maintenance as ordered by the Judge, you may proceed to recover the arrears by filing an enforcement application to the Family Court. Please consult a lawyer.

Arrears of maintenance can only be recovered up to a period of 3 years before the filing of the enforcement application. Any arrears in excess of the 3 years therefore cannot be recovered under such application.

Enforcement Order

The Judge has the power to impose a fine or even sentence your husband/ex­husband to imprisonment for a term of not more than one month for each month that he is in arrears of maintenance.

You can make your complaint at the Family Court at Havelock Road. The complaint is filed in English. If you need an interpreter, you should request for one at the Family Court. You may be required to accompany the Process Server (a Court Officer) to serve the summons on your husband/ ex­husband. You should find out when and where your husband/ex­husband can be found before you file your complaint. This would save you time and effort in serving the summons.

On the day of the hearing, you should prepare yourself by asking the Maintenance Counter in the Family Court to issue an updated record, showing the arrears of your husband/ex­husband, for the Judge if the Order required him to make payment through the Court.

Attachment Order

The Judge also has the power to make an order that the maintenance be paid by the employer of the husband/ex-husband out of his salary if he holds a steady job and has been defaulting regularly. You should be prepared to provide the Court with the name and address of his employer.