Enforcement Of Maintenance Order And Child Support
Getting Your Child’s Maintenance Order Before Divorce
There are 2 kinds of maintenance applications. One which is done before divorce proceedings commence while the other after divorce proceedings commence (at the ancillary stage).
This article focuses on interim (temporary applications) before divorce proceedings commence or before interim judgement (for civil divorces).
It is important to note that Muslims are also allowed to apply for interim maintenance at the family court.
However, for Muslims, the Syariah court order will be the final order (only for the wife and not the children).
For child maintenance, Muslims can only seek orders from the Family Court as such it would not technically be an interim application per se for muslims if they seek an order for child maintenance.
Now, moving on, many are of the opinion that the father should pay for the full expenses of the child in a maintenance application.
This is a conceptual error. Let us look at Section 69 (2) of the Women’s Charter:
The court may, on due proof that a parent has neglected or refused to provide reasonable maintenance for his child who is unable to maintain himself, order that parent to pay a monthly allowance or a lump sum for the maintenance of that child.
As such if the father has been caring for the child, and the mother refuses to contribute despite having the ability to do so, the father may make an application to court for maintenance of child.
Similarly, a wife cannot expect her husband to maintain her fully or for all her needs and wants. The sum must be reasonable and it must be a “tide over sum”, which is a buffer until the final determination of the divorce.
To succeed in such applications, it is necessary for the applicant to show neglect or refusal by a parent or husband to provide for the child or wife.
It is important to note that a husband cannot claim maintenance from the wife unless he is incapacitated.
A common question asked by many is whether there is a difference between how Courts deal with a maintenance application during the course of the marriage and one after divorce proceedings have been filed.
Generally, there is a need to show need (for maintenance) and reasonableness and the threshold between both the applications is not too far but it is premised on whether there is a need and reasonableness.
Further, the Court will not be too ready to intervene and take a holistic view as that will be considered to have a negative impact on the family.
As such the view taken is whether there is a need and what is a reasonable sum to tide the wife over until the conclusion of ancillary matters (if any).
This is because at the ancillary stage, the Court takes a holistic view of all matrimonial assets along with parties’ capacity in coming to a decision.
For an application for interim maintenance, the Court’s goal is to address immediate financial needs and a modest maintenance to tide over pending the final determination of the divorce at the ancillary stage.
We must also note that any such maintenance ordered is always conservative.
The Court looks at several issues which include, as per s 69(4) of the Women’s Charter:
The Court, when ordering maintenance for a wife, an incapacitated husband OR a child under this section, shall have regard to all the circumstances of the case including the following matters:
(a) the financial needs of the wife, incapacitated husband or child;
(b) the income, earning capacity (if any), property and other financial resources of the wife, incapacitated husband or child;
(c) any physical or mental disability of the wife, incapacitated husband or child;
(d) the age of each party to the marriage and the duration of the marriage;
(e) the 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;
(f) the standard of living enjoyed —
(i) by the wife before her husband neglected or refused to provide reasonable maintenance for her;
(ii) by the incapacitated husband before his wife neglected or refused to provide reasonable maintenance for him; or
(iii) by the child before a parent neglected or refused to provide reasonable maintenance for the child;
(g) in the case of a child, the manner in which he was being, and in which the parties to the marriage expected him to be, educated or trained; and
(h) the conduct of each of the parties to the marriage, if the conduct is such that it would in the opinion of the court be inequitable to disregard it.
As such, it is important for one to put together their expenses down clearly and take note of these factors before rushing to apply for one.
It is very easy and simple to apply for maintenance. All that one needs to do is to go to the Family Court to file a complaint form.
However, it is important to do your homework and strategise properly. if you fail to plan, you may actually be planning to fail.
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