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February 16, 2019

What courts consider when issuing alimony orders

Alimony (spousal support) payment may be expressed as a fixed amount or as a percentage of income. Support will either be indefinite or end at a fixed point.

Section 25

(1) of the Matrimonial Causes Act provides that in any suit under the act, the wife may apply to the court for alimony pending the suit, and the court may thereupon make such order as it may deem just. However, the alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years preceding the date of the order, and shall continue in the case of a decree nisi (provisional decree) of dissolution of marriage or of nullity of marriage until the decree is made absolute.

 2) The court may, if it thinks fit, on any decree for divorce or nullity of marriage, order that the husband shall secure to the wife such gross sum of money or annual sum of money for any term, not exceeding her life and having regard to her fortune, if any, and the ability of her husband.

(3) In any such case as aforesaid the court may, if it thinks fit, by order, either in addition to or instead of an order under subsection (2) of this section, direct the husband to pay to the wife during the joint lives of the husband and wife such monthly or weekly sum for her maintenance and support as the court may think reasonable provided that:

(i) if the husband, after any such order has been made, becomes from any cause unable to make the payments, the court may discharge or modify the order, or temporarily suspend the order as to the whole or any part of the money ordered to be paid, and subsequently revive it wholly or in part as the court thinks fit; and

(ii) where the court has made any such order as is mentioned in this subsection and the court is satisfied that the means of the husband have increased, the court may, if it thinks fit, increase the amount payable under the order.

(4) Where any decree for restitution of conjugal rights or judicial separation is made on the application of the wife, the court may make such order for alimony as the court thinks just.

(5) In all cases where the court makes an order for alimony, the court may direct the alimony to be paid either to the wife or to a trustee approved by the court on her behalf, and may impose such terms or restrictions as the court thinks expedient, and may from time to time appoint a new trustee if for any reason it appears to the court expedient so to do.

Many spouses usually negotiate on the terms of the alimony and record the agreement with the court. Most alimony contracts provide for termination on the death of the payor, the death of the payee, or the remarriage of the payee.

Parties have the option to provide that alimony terms may never be modified, except by agreement of the parties. For example, the parties may agree to limit modification to certain changed circumstances, such as a party becoming disabled.

When the amount of support is substantial and is premised on the payer’s continued ability to earn a high income, the payor may want to include a provision permitting termination or suspension of payments if he or she becomes involuntarily unemployed.

Both parties may be better off if the payor makes concessions in the property division to get a lower alimony payment or an earlier termination than would otherwise be the case.

Incorporating a marital settlement agreement into a judgment of divorce, so that the full array of enforcement remedies is available and may be the best protection for the payee.

Under Article 45 of the Constitution, parties to a marriage are equal. This means that men are also entitled to alimony in the same vein as the women.

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